Texas City Chemicals, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1955

112 N.L.R.B. 218 (N.L.R.B. 1955)

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interfering with, restraining , and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent has engaged and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Texas City Chemicals, Inc. and Oil , Chemical and Atomic Workers.
International Union , CIO and Advisory Council of Texas City
Chemicals, Inc. Case No. 39-CA-396. April 18, 1955
DECISION AND ORDER
On December 27, 1954, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8 (a) (2) of the Act and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Exceptions were thereafter filed only by the Re-
spondent, not by the Advisory Council, the Union, or the General
Counsel. The Respondent also filed a brief.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case 1 and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
except as modified below.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Texas City Chem-
icals, Inc., and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Initiating, forming, assisting, dominating, contributing finan-
cial or other support to, or interfering with the administration of
the Advisory Council or any other labor organization.
(b) Otherwise interfering with the representation of its employees
through a labor organization of their own choosing.
(c) Recognizing the Advisory Council, or any successor thereto,
as the representative of any of its employees for the purpose of dealing
with the Respondent concerning grievances , labor disputes , wages,
rates of pay, hours of employment, or other terms and conditions of
employment.
1 The record consists of a stipulation of facts and certain other documentary material.
A hearing was waived . We note that Appendix B attached to the Intermediate Report
is an incomplete copy of the stipulation , omitting the attachments thereto.
112 NLRB No. 40.
TEXAS CITY CHEMICALS, INC. 219
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from the Advisory Council as the
representative of any of its employees for the purpose of dealing with
the Respondent concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other terms and conditions of em-
ployment, and completely disestablish said organization as such
representative.
(b) Post at its plant in Texas City, Texas, copies of the notice
attached hereto marked "Appendix A." 2 Copies of said notice, to
be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by a representative of the Respondent
be posted by the Respondent immediately upon receipt thereof, and
shall be maintained by it for a period of sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
to insure that such notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be dismissed insofar
as it alleges that the Respondent engaged in any other unfair labor
practices.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that :
WE WILL NOT initiate, form, assist, dominate, contribute financial
or other support to, or interfere with the administration of, any
labor organization.
WE WILL NOT otherwise interfere with the representation of our
employees through a labor organization of their own choosing.
WE HEREBY disestablish the Advisory Council of Texas City
Chemicals, Inc., as the representative of any of our employees for
the purpose of dealing with us concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other terms or
2In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the Molds "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment, and we will not recognize it or any suc-
cessor thereto for any of the foregoing purposes.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form, join, or assist any labor organizations, to
bargain collectively through representatives of their own choosing,
or to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or to refrain from
all or any such activities except to the extent that said right may
be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized by Section
8 (a) (3) of the Act.
All our employees are free to become or remain members of any labor
organization, including Oil, Chemical and Atomic Workers Interna-
tion Union, CIO.
TEXAS CITY CHEMICALS, INC.,
Employer.
Dated----------- ----- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced , or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On March 9, 1954, Oil, Chemical and Atomic Workers International Union, CIO,
filed with the Board a charge alleging that the Respondent, Texas City Chemicals, Inc.,
Texas City, Texas, had committed unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and ( 2) and Section 2 (6) and (7) of the National
Labor Relations Act, 61 Stat. 136. This charge was served on the Respondent on
March 10, 1954. On March 29, 1954, an amended charge was filed which was
served on the Respondent on March 30, 1954. On June 30, 1954, pursuant to Section
10 (b) of the Act and Section 102.15 of the Board's Rules and Regulations, the
General Counsel issued a complaint and notice of hearing .' Copies of the aforesaid
charges, complaint , and notice of hearing were duly served on the Respondent , the Oil
Workers, and the Advisory Council of Texas City Chemicals, Inc.2-an organization
allegedly formed and maintained by the Respondent in violation of Section 8 (a) (2)
of the Act.
The complaint alleged that about and since August 1953 , the Respondent, in
violation of Section 8 (a) (1) and (2) of the Act, ( 1) initiated, formed, and
sponsored the Advisory Council, and thereafter assisted , dominated, contributed to its
support, and interfered with its administration , and (2) interrogated its employees con-
cerning their union affiliation ; threatened and warned them to refrain from assisting,
becoming , or remaining members of the Oil Workers; threatened and warned its em-
ployees to assist, become, or remain members of the Advisory Council; kept under
surveillance its employees ' concerted activities , and also,
During August 1953, through its Production Coordinator, Robert J. Seyfried,
caused ballots to be printed and distributed among Respondent's employees;
caused said employees to cast ballots for employee representatives of the Ad-
' A stipulation thereafter filed-more specifically referred to hereinafter-incorrectly-
recites that the complaint and notice of hearing were dated June 17, 1954.
'Also referred to in the caption of the complaint as "Advisory Council of Employees of
Texas City Chemicals , Inc."
TEXAS CITY CHEMICALS, INC. 221
visory Council, and conducted meetings of the Advisory Council on Respondent's
time and property, and has provided meeting places, stationery equipment and
clerical service for the Advisory Council from about September 29, 1953, to
date.
By answers subsequently filed, the Respondent and the Advisory Council denied the
unfair labor practice allegations of the complaint.
However, no hearing was held upon the complaint. Instead, the parties entered
into a stipulation containing facts and evidence, waived hearing, and agreed that the
stipulation and other described or accompanying documents should constitute the
record, upon the basis of which a Trial Examiner could make recommendations as
to findings of fact, conclusions of law, and a proposed order, to which any of the
parties could file exceptions. In due course the stipulation was filed with the Chief
Trial Examiner who designated me to act as Trial Examiner. Under date of October
25, 1954, and pursuant to request of Counsel for the Respondent, all parties were
granted to November 17, 1954, to file briefs and proposed findings. Briefs have been
received from the Respondent and the Advisory Council.
Upon the basis of the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Texas City Chemicals, Inc., is and has been at all times material hereto a corpo-
ration organized and existing by virtue of the laws of the State of Texas, having a
principal office and place of business located in the city of Texas City, Texas, the
facilities herein involved, and hereinafter referred to as the Texas City plant, where
it is engaged in the manufacture, sale, and distribution of phosphoric feed, dical-
cium phosphate, sodium silico and fluoride, and related products. Respondent
commenced operations on a partial scale in October 1953. From October 1953 down
to the early part of September 1954 the Respondent has been in full operation for
an aggregate time of 3 or 4 months. For this 10-month period the Respondent has
made sales of chemical products of a value of $279,438, of this amount $110,000
was the value of said products which were sold and transported to the Carbide &
Carbon Chemicals Division, Union Carbide & Carbon Corporation, which com-
pany ships products and materials from its Texas facilities to points outside the
State of Texas, of a value in excess of $200,000 annually. Commodities so fur-
nished by Respondent to Union Carbide & Carbon Corporation became a part of
products manufactured and shipped by the latter corporation to points outside the
State of Texas. Respondent has purchased supplies from outside the State, namely
from Agriculture Chemical Company in Pierce, Florida, in the approximate amount
of $100,000. The Respondent has made approximately $10,000 direct sales outside
the United States, pursuant to the provisions of a Government contract, which sales
are related to the national defense.
The Respondent neither admits nor denies jurisdiction. It is found that the ac-
tivities of the Respondent affect commerce within the meaning of Section 2 (6) of
the Act.
II. THE ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union, CIO, is a labor organ-
ization within the meaning of the Act.
The Advisory Council is an organization established by the Respondent at its
Texas City plant. Whether it is a labor organization is one of the issues in this
proceeding.
III. THE UNFAIR LABOR PRACTICES
The Respondent is a relatively new enterprise producing (principally) dicalcium
phosphate by a new process. It was incorporated in 1950; the plant is newly
constructed.
As has been seen, operations-though not on full scale-got under way at the
plant in October 1953. At the time of the execution of the stipulation the plant
had been in full-time operation for only 3 or 4 months However, the Respondent
had a complement of employees (though it is not disclosed how many) as early as
August 1953. In September Robert J. Seyfried, then the Respondent's production
coordinator, set up an Advisory Council and held an election in which employees
selected representatives to the Council. Previous to that time, Seyfried had pre,
pared a booklet or employees' manual designed to acquaint the employees with the
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, their job, and various company policies. The Advisory Council was thus
explained in that booklet:
An Advisory Council, made up of representatives from the various operating
sections of our plant, will be installed as soon as is practical after the com-
mencement of operations. This Advisory Council will represent the employees
and present to management any problems and complaints of their groups and,
in addition, consult and advise on policies and practices that affect the com-
pany or employees. It must be borne in mind that the Advisory Council is
not a bargaining unit, but discusses and advises with management on any con-
dition affecting the welfare of our employees. Since it is contemplated that
this Council will start functioning in a short time, such matters as provision
for bidding for job vacancies, equalization of overtime, seniority, recreation
funds, etc , have been deliberately omitted from this pamphlet so that they
can be presented and discussed by this Council. The decisions reached will
then better reflect the desires of the employees directly affected by such poli-
cies. Until this is done, such matters will be left to management.
The purpose of establishing the Advisory Council is thus described in the
stipulation:
The purpose of establishing the Advisory Council as set forth in the pamphlet,
"YOUR JOB AT TEXAS CITY CHEMICALS, INC." attached hereto and
made a part of this Stipulation was to provide a vehicle for the exchange of
information between Respondent and its employees, not only with respect to
wages, hours, and working conditions but also on other matters.
Prior to actual establishment of the Advisory Council, Production Coordinator
Seyfried "felt out" employee sentiment about it. Thus, he says (stipulation, para-
graph 5),
In setting up personnel relations, I thought that since we had no union we
needed some direct contract with the men. Other plants in the Houston area
had a scheme called the Advisory Council so I adopted it. First I tried to
analyze if the men would go for it I felt them out about it Some men I
talked to in the office either when I hired them or later. Others were talked
to in the plant. I told them I was setting up management policies and that I
wanted some way to get their views.
Seyfried set up the structure of the Advisory Council. He divided the plant
into 6 units: 4 operational, 1 maintenance, and 1 guard unit.3 The employees in
each of these units elected a representative and an alternate, who then, along with
similar representatives from other departments, met periodically with representa-
tives of management and discussed matters of mutual interest relating to employ-
ment and other conditions-more specifically described hereinafter.
Eligibility to be an employee representative on the Advisory Council was re-
stricted to persons employed in the particular section. Though the record is not
specific in this regard-eligibility both to vote and to be an employee representa-
tive was presumably restricted to nonsupervisory employees. I so assume.
The first election, announced by bulletins posted in the plant by the Respondent,
was apparently held on September 11, 1953.4 This bulletin was as follows:
TEXAS CITY CHEMICALS, INC.
TEXAS CITY, TEXAS
NOTICE TO ALL HOURLY EMPLOYEES
ELECTION OF REPRESENTATIVES TO ADVISORY COUNCIL
In Bulletin #3, an announcement was made that elections of representatives
for the Advisory Council would be held September 11, 1953. These elec-
tions will be held as scheduled . Your immediate supervisor will hand you
3 Seyfried's statement in the stipulation is to the effect that he set up 3 operating, 1
maintenance, 1 laborer, and 1 guard unit A notice to the employees dated September 17,
1953, containing the results of the first election, lists four operating units, a maintenance
unit, and a guard unit Seyfried's laborer's unit is presumably one of these operating
units
* Seyfried's statement in the stipulation places it as "about August"- an insubstantial,
and understandable. variance.
TEXAS CITY CHEMICALS, INC. 223
a ballot and these ballots should be returned to him after they are filled in.
Election will be secret ballot. Vote for one member of your section for
representative and one member as alternate. The attached is a list of the
men according to the section in which they have been tentatively placed. All
of the men hired have not yet reported for work so that some of the sections
are temporarily short of men. A subsequent shifting of men may produce
inequities in some of the sections. That is one of the reasons for the term
of office for the first representatives and alternates being only two months.
RJS : rlp
att.
9-10-53
Seyfried also set up the election procedure, which he described in the stipulation
as follows:
I, myself, set up the election procedures. I printed ballots. There were no
nominations. I set up five units-three operating units, a maintenance unit
and a laborers unit. At first, I also set up a guard unit, but later the guards
told me they felt they were too much a part of management to participate.
In conducting these elections, I passed out ballots directly for the most part,
but some indirectly. The first election was held about August 1953, and
the second about November 1953. After ballots were passed out, I generally
waited for the men to mark them. If they wanted time to think, I would
go away and come back later. All ballots were marked in secret, as far
as I know. I had five separate envelopes, one for each unit. These envelopes
were sealed, but a small slit was cut in each so that ballots could be inserted.
After each man voted, I had him sign his name on the envelope in which
his ballot was deposited. When all the men had voted (the group was so
small I didn't need to check against a payroll list), I picked men by chance to
verify the count. In a few instances we had tie votes and had to conduct run-offs.
When the results were known, I issued a bulletin announcing them. The
time between distribution and counting averaged about three days. We did
not require a majority-only a plurality.
The September election resulted in a tie in two of the operating units. On
September 17, therefore, a notice was posted by the Respondent advising the
employees of the results and informing them that a runoff election would be held
"immediately" in the section affected by the ties. This runoff was presumably held.
The Advisory Council held its first meeting in the plant on September 29, 1953.
Up to January 1954 meetings were held every 2 weeks. At the January 5, 1954,
meeting, however, one of the management representatives, R. B. Wilson, stated
that this was more frequent than management had anticipated. He therefore sug-
gested meeting at 3- to 4-week intervals, with supplemental meetings if necessary.
At some time thereafter decision was apparently made-though the record does
not disclose how or by whom-to meet only once a month. Thus the minutes
of the March 2 meeting recite that "Mr. Wilson stated that in view of the fact
that the Advisory Council is meeting only once a month that management believes
that it would be in order for the meetings to begin at 2:00 P. M. instead of 3.00 P. M."
The record shows that after January 1954, meetings were held on March 2, April 6,
and May 4, 1954. Whether there was a meeting in February is not disclosed.
On November 12, 1953, another election was held for employee representatives.
In the meantime, the guards had indicated that they wished not to be represented
on the Advisory Council, the guards' representative having stated at the November
10 meeting that the guards "felt their work was of such nature that nothing could
be gained by their being represented on the Council." The guards, therefore, did not
participate in the November 12 election, or, so far as appears, further participate in
the activities of the Advisory Council. The term of office of the representatives
elected in September had been for 2 months only. At the November 10 meeting
of the Advisory Council, however, it was decided that the term of office of their
successors should be for 6 months The election was duly held-and presumably
under circumstances similar to the September election Under date of April 28, the
Respondent, pursuant to a decision of the Advisory Council made at a meeting held
on April 6, posted notices of another election of employee representatives to the
Advisory Council, to be held on April 28 and 29.
A. The structure and procedure of the Advisory Council
As has been seen, the first meeting of the Advisory Council was held on September
29, 1953. Copies of minutes of 12 meetings are in evidence: September 29,
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 6, October 20, November 3, November 10, November 27, December 8, and
December 22, 1953, and January 5 , March 2, April 6, and May 4, 1954.
All the meetings were held in the general office building of the plant. From
September through March the meetings began at 3 p. m. and ran at least 1 hour,
generally more-sometimes adjourning as late as 5 : 30 p. m. Regular working
hours for the day employees were from 8 a. m. to 4:30 p. m. The employee repre-
sentatives were apparently paid for time spent in the Advisory Council meetings,
as well as paid overtime at premium rates when the sessions ran beyond 4:30. Thus,
the minutes of the January 5 , 1954, meeting recite, in part, as follows:
OLD BUSINESS:
1. Overtime for Advisory Council Meetings
Mr. Wilson stated that management preferred not to pay overtime for Council
meetings except in emergency cases. In the beginning it was necessary to hold
several meetings because of the plant just starting . It was brought out that the
alternate members might resent regular members being paid overtime on a
consistent basis. Mr. Wilson further stated that a meeting every two weeks is
a little more often than was anticipated by management , and that it would
probably be best if meetings could be conducted every three or four weeks with
supplementary meetings being held if necessary.
At the March 1954 meeting, pursuant to suggestion of Mr. Wilson, the Council
voted to begin the meetings at 2 p. m., rather than at 3. Thereafter no meeting ran
beyond 4.30 p. m.
The employees were represented at these meetings by the elected representatives
or by their alternates , management was represented usually by two representatives,
sometimes more, sometimes less. Among the persons identified in the minutes as
management representatives present at meetings from time to time were Comptroller
R. B. Wilson, Plant Superintendent G. E. Schiffbauer , Production Coordinator Sey-
fried, Safety Director W. A. Wilson, and also W . S. Cole and C . M. Chrisman-
whose titles are not disclosed
At the first meeting of the Advisory Council, on September 29, 1953, officers were
elected, consisting of a chairman , vice chairman , secretary , and alternate secretary.
All officers elected were employee representatives.
After the November 1954 elections of employee representatives , new officers-
consisting of a chairman and a secretary-were elected by the Advisory Council.
Again the officers elected were employee representatives. Another election of em-
ployee representatives was, according to a bulletin in evidence , noticed for April 28
and 29 , 1954. The minutes of the May 4, 1954, Advisory Council meeting indicate
a substantial change in employee representatives from the preceding month, and the
minutes of that meeting are signed by a new secretary . However, the minutes con-
tain no specific information either as to the results of the previously scheduled elec-
tions or indication that new officers were chosen by the Advisory Council.
Generally the minutes of the Advisory Council meetings are signed by the secre-
tary and presumably composed by him. Occasionally , however, they are jointly
signed by a company representative and the Council secretary . This is true of the
meetings of March 2, 1954 , and April 6, 1954, for example , which are signed by
R. B. Wilson and L. B. Oakley, the latter being the secretary of the Advisory Council
and an employee representative . The wording of the minutes of these two meetings
suggests that they were written by R. B . Wilson or by some other management
representative.
The parties have stipulated that all stationery and equipment , clerical services, the
printing of minutes, notices of meetings , and ballots and all other material pertain-
ing to the work of the Advisory Council have been furnished by the Respondent.
B Subjects and nature of discussion
The minutes of the meetings of the Advisory Council disclose that the following
subjects were discussed at various times. The figures in parentheses indicate the
number of meetings at which the subjects were discussed.5
Vacations ( 5), job rotation ( 1), seniority (4), disposition of revenue from plant
vending machines ( 2), holidays (4), wage rates ( 5), overtime pay (4 ), hours of
work ( 1), posting of job vacancies and bidding therefor ( 3), status of temporary
employees ( 1), sick leave ( 2), a stock purchase plan (5 ), work jurisdiction and job
5 Classification of the subjects of discussion (and, consequently, the frequency of their
discussion ) is bound to be, to some extent, a matter of individual judgment as to which
there may be reasonable difference of opinion , as well as overlapping.
TEXAS CITY CHEMICALS, INC. 225
description and classification (9), lines of supervision (3), interchange of employees
(2), distribution of paychecks (1), group insurance (3), protective work clothing
(3), timekeeping (2), safety and ventilation measures (8), credit union (6), content
of the employees' manual (3), employees' parking and car washing facilities (3),
additional water fountain (1), council elections, meetings, and procedure (6), op-
erational plans, plant equipment, new products (2), shift differential (1), plant
"housekeeping" (3), overtime pay for representatives attending council meetings
(1), supervisory assistance (2), and plant morale (1).
The nature and the scope of the discussions are illustrated by the following seem-
ingly typical excerpts from the minutes of the meetings. These examples are illus-
trative merely, and not exhaustive.
1. Wages; overtime; shift differential
a. December 8, 1953
Mr. Oakley [employee representative and secretary of the Council] sug-
gested that if a day worker works overtime he should be entitled to shift differ-
ential. He further stated that this is customary in other plants.
Mr. Oakley gave his understanding as to how this was handled at other
plants. Mr. Seyfried explained the position of the company with regard to the
matter. Mr. Seyfried will check with other companies in the area and report
to the Council.
At this point it was suggested by Mr. Oakley to review the wage scale for
Maintenance men, especially electrical and instrument men, as compared to
other plants in the area. It was also suggested the Texas City area only should
be used in comparing practices of other plants.
Upon inquiry Mr. Seyfried stated that the company also took into considera-
tion the Houston and Channel areas in setting up wage scales and that the
company pays the average but not as high as before the recent increase granted
at other plants, the refineries not entering into the calculations.
Mr. Seyfried stated that he would instigate a study on this and report at a
future meeting
It was pointed out that Maintenance only is involved, and that Carbide [a
neighboring plant] pays top operators the same as maintenance workers. It
was stated by management that the plan is to pay top operators the same as
the maintenance men.
b. March 2, 1954
Mr. Hallmark [employee representative] also brought up the question of
the petition that was filed some thirty (30) days ago with the company and
which was signed by various operators. This petition asked that they be con-
sidered for a general wage increase in order to advance the top operators rate
with the mechanic rate. This, I6 believe, is not feasible at this time as in
checking in every contract in this area together with the Houston area, Port
Arthur area and Corpus Christi area it is found that the majority of plants
follow a consistent pattern of paying the difference of a few cents between
top mechanic and top operator rate.
Apparently Comptroller R B Wilson
2. Vacations
a. March 2, 1954
Mr Hallmark suggested that at this time the company give consideration to
increased vacation benefits, and this is a matter on which the writer cannot
offer any decision at this time Mr. Hallmark suggested that the ten (10) days
vacation period be considered after one (1) year of service; and fifteen (15)
days after two (2) years.
It is, however, my opinion at this time that each employee, by taking ad-
vantage of changes in each shift, can obtain the necessary days vacation by
scheduling his vacation with his supervisor to take benefit of the week ends
that he is off.
b. April 6, 1954
Mr. Wilson stated that management does not see fit to give the increased
vacation benefits that Mr. Hallmark suggest [sic] in last month 's meeting.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Seniority
a. October 6, 1953
The question was raised whether seniority should rule on a man's promotion.
General agreement was reached that promotion should not enter into the senior-
ity question.
A general discussion on seniority was held, each committeemen voicing the
opinion of his group for the record as to the date of seniority-equal starting
time vs hiring date.
The Chairman then put a motion before the meeting that the vote on seniority
be taken as a group. The motion was seconded and voted upon, with six ayes
and one dissenting vote. Mr. Westerlage Lemployee representative] cast the
dissenting vote.
A motion was then made by Mr. Shelton [employee representative] to dis-
cuss seniority to determine by the next meeting what date to start seniority.
The motion was seconded and voted unanimously.
b. November 24, 1953
L. B. Oakley asked that mechanic helpers with lowest seniority be assigned to
shift work in place of helpers with higher seniority.
c. December 8, 1953
Mr. Seyfried stated that the Plant Engineer wants to discuss this [Oakley's
suggestion of November 24] further with the Maintenance Superintendent.
He further stated that the Plant Engineer does not want to break up crews but
that the latter would go along with the suggestion. After general discussion,
it was decided to leave this matter open for turther consideration, but that tem-
porary employees should be on temporary day work only. It was stated that
Messrs. Commiate and Corona [employees?] particularly requested an early
answer to this question.
4. Holidays
a. October 6, 1953
A discussion was held on the number of holidays to be had at this plant.
Policy at other plants in the area was mentioned, and Mr. Beaty [employee
representative] brought up the fact that many plants recognize seven holidays.
The matter was tabled for further discussion. Mr. Zipprian Lemployee repre-
sentative] recommended that we confine ourselves to the Texas City area when
making comparison of our policies with those in other plants. This was in-
formally agreed upon by all present.
b. November 24, 1953
E. E. Hallmark requested that management give consideration to the allow-
ance of a seventh holiday on San Jacinto Day
c. December 8, 1953
Mr. Wilson reported that management had definitely decided to give the
company employees this seventh holiday, commencing with 1954.
5. Interchange and transfer
a. November 3, 1953
A discussion was held regarding Company policy as to Operators giving
Maintenance a hand during shutdowns. No formal action was taken, but it was
agreed that Operators should be assigned to help Maintenance men when units
are down and there is no work for the Operators to perform. A definite pro-
cedure should be followed in assigning these Operators, and they should work
directly under the Maintenance men in making the necessary repairs. It was
suggested that other plants be contacted regarding their policy along this line-
Mr Seyfried agreed to do this.
b. January 5, 1954
Mr. Wilson stated that management would like a definite answer from the
entire plant organization about what to do when we will have to transfer men
TEXAS CITY CHEMICALS, INC. 227
from one job to another due to vacations, emergencies, etc.; what base of sen-
iority should we use. It was further brought out that each trainee should be
allowed to relieve on these instances to give the trainee an opportunity to show
what he could do. Mr. Cole advised that DCP operations have an extra man
for this purpose, and the time will come when this employee will be utilized a
good portion of the time for relief purposes. It was further brought out, how-
ever, that extra men could not be shifted to the Recovery Unit unless he was
cleared. It was, also, brought out that the relief employee should receive the
regular pay for the job when he is placed on a temporary basis.
Mr. Brenner [employee representative] brought up the question as to what
was the company's thinking with reference to filling a vacancy if an operator
were to quit, and discussed the advisability of having trainees or other operators
bid on the vacancy. It was further requested that management give considera-
tion to allowing the men to bid on vacancies in the future.
6. Job classification and description
a. November 24, 1953
L. C. Wardell [employee representative] stated that laborers would like a
clear definition of what work is included in their jurisdiction.
(Ibid) The group in general requested that management give a clearer defini-
tion of what constitutes operator's work and what constitutes mechanic's work.
R. J. Seyfried will attempt to work this out by the next meeting.
b. January 5, 1954
Mr. Cole [management representative] stated that Mr. Wardell [employee
representative] had asked for a job description. Mr. Cole stated that he could
only write one for laborers at the present time. Mr. Wilson stated that man-
agement hesitates to write job descriptions until a later date. Mr. Wardell
stated that they will gladly wait until other information is obtained, and would
also like for it to include bagging and general laborers.
c. March 2, 1954
Mr Wardell brought up the subject of job classification and job description,
and since this has been a subject for discussion for the past several months 'Vlr.
Cole has agreed at this time to work up job classifications and descriptions
which will be written and approved before the next Council meeting.
7. Overtime, insurance
a. January 5, 1954
Mr. Wilson stated that management will get out a list this week that will
furnish for your examination a list of each man who has worked overtime, begin-
ning with December. Mr. Hallmark stated that he believes that this has created
more dissension than any other thing. Mr. Wilson further stated that the work
we have been doing for the past 3 or 4 months has necessitated overtime.
Every other week there are either electrical changes or instrument adjustments
that have to be made. These are a few of the things that have prevented man-
agement from putting out such a schedule. Mr. Cole stated that attempts will
be made to equalize the overtime, and that the company has seen fit to equalize
the operators pay as far as the DCP or the whole plant is concerned. It was
agreed by everyone present that this is a big step.
Mr Cole asked Mr. Hallmark, "What else are the men unhappy about?" Mr.
Wilson asked, "Have any of the men been complaining about the group in-
surance?" He further stated that it took a total of 12 days to get the last
claim processed, and that included Christmas week He further added, "If
any of the men criticize, please let me know about it as we can handle the situa-
tion more effectively if we hear about it at the beginning rather than at a later
date."
b. March 2, 1954
As advised in the past, the company will endeavor to follow the policy of
equalizing overtime similar to other industries in this area which is to equalize
overtime on an annual basis if at all possible.
369028-56-voi 112-16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. April 6, 1954
Mr. Oakley stated that management was two months behind in posting of
overtime. At this point Mr. Chrisman was called into the meeting and ques-
tioned concerning this matter. Mr Chrisman stated that the overtime had not
been posted for the past two months and he was instructed by management to
bring the posting up to date. Thereupon, Mr. Chrisman left the meeting.
8. Hours of work
a. May 4, 1954
It was suggested that Maintenance and Laborers start their shift at 7 A. M.
and leave at 3:30 p. M. This would not affect the office personnel. The
Laborers agreed to this schedule. Mr. Schiffbauer agreed that it will not affect
the operation of the plant and that he will mull it over. This would bring Texas
City Chemicals more in line with Carbide and Republic, the Tin Smelter and
T. C. C being the only ones to start as late as 8:00 A. M.
9. Job posting
b. March 2, 1954
Mr. Brenner [employee representative ] also brought up the question of
bidding system to be used in the plant. This item is one that has been con-
sidered by the Advisory Council in the past two meetings and this will be covered
by more thoroughly and completely in the booklet containing the company
policy which will be published, but at this time we would like to say that the
company intends to follow the practice of the bidding system on jobs in the
plant; and seniority will be used wherever possible in all cases, and any employee
has a right to bid on an open job. The job shall be filled on the basis of plant
seniority with fitness and ability to benefit the job open being sufficient.
Posting of the jobs shall be for five (5) calendar days, and employees
failing to bid within that time will be considered as having waived his seniority
right to that particular job.
Conclusions
At the outset it should be observed that there is nothing in the record to suggest
that, in setting up the Advisory Council, the Respondent was motivated by a purpose
to interfere with the organizational rights of its employees . On the contrary, the
stipulated facts, and the minutes of the meetings of the Advisory Council, reflect
a genuine concern on the part of the Respondent for the welfare of its employees.
If, however , in the effectuation of its design the Respondent took action clearly
proscribed by the statute , its benign intent is not a defense.
The principal issue is whether the Respondent violated Section 8 (a) (2) of
the Act, as the complaint alleges, in that it "did on or about August, 1953, initiate,
form and sponsor the Advisory Council, and from August, 1953, to date, . as-
sisted, dominated , contributed to the support of and interfered with the administration
of said Advisory Council." However, the complaint also alleges independent
violations of Section 8 (a) (1). It will be well to dispose of those allegations before
turning to the salient , or 8 (a ) ( 2), issue.
C. The independent 8 (a) (1) allegations
Apart from assertions to the effect that the claimed 8 (a) (2) conduct is also
violative of Section 8 (a) (1), the complaint alleges the following Acts of inter-
ference, restraint , and coercion by the Respondent : ( 1) Interrogation of employees
as to union affiliations ; ( 2) threats and warnings to employees to refrain from
assisting , becoming , or remaining members of the Charging Union; (3) threats
and warnings to employees to assist , become, or remain members of the Advisory
Council , and (4) keeping under surveillance the concerted activities of employees
As to item ( 1), interrogation of employees , the only evidence thereof is the
reference in the stipulation in pages 3 and 4 to Robert J . Seyfried 's asking employees
whether or not they desired to participate in the Advisory Council.?
7 The stipulation thus quotes Seyfried :
First I tried to analyze if the men would go for it I felt them out about it. Some
men I talked to in the office, either when I hired them or later Others were talked
to in the plant I told them I was setting up management policies and that I wanted
some way to get their views.
TEXAS CITY CHEMICALS, INC. 229
Assuming that the Advisory Council constituted a labor organization ( an issue
resolved hereinafter), these statements of Seyfried were not such-in their context
and circumstance-as to import interference, coercion, restraint, threat of reprisal,
or promise of benefit. It is accordingly found that the evidence does not establish
this allegation of the complaint, and its dismissal will consequently be recommended.
Blue Flash Express, Inc., 109 NLRB 591.
As to allegations (2), (3), and (4), detailed above, there is no evidence whatever
to substantiate those. Their dismissal will therefore also be recommended.
D. The 8 (a) (2) violation
That the Advisory Council is an organization is not disputed. The issue is
whether it is a labor organization. Unless it is such, there can be no violation
of Section 8 (a) (2), no matter what the Respondent's connection with it. Though
the complaint does not specifically allege that the Advisory Council is a labor
organization, such an allegation is necessarily implicit in the assertion that the
Respondent's actions vis-a-vis the Council violate Section 8 (a) (2). That sub-
section does not illegalize nonlabor organizations. Thus, the statute says:
It shall be an unfair labor practice for an employer . . . (2) to dominate or
interfere with the formation or administration of any labor organization
[emphasis supplied] or contribute financial or other support to it: Provided,
that subject to Rules and Regulations made public by the Board pursuant to
Section 6, an employer shall not be prohibited from permitting employees to
confer with him during working hours without loss of time or pay.
The position of the Respondent, concurred in by the Advisory Council, is that
the Council is a discussion group, a medium of communication, and not a labor
organization, and therefore not within the intendment of Section 8 (a) (2). The
problem is thus succinctly stated in the Respondent's brief:
Probably the focal point of disagreement in this case is whether or to what
extent the Advisory Council is a "labor organization." Narrowing the area
further, the issue becomes that of giving body to the word "dealing" in Sec-
tion 2 (b) defining "labor organization." Concretely, when, under the
statute is an organization dealing with an employer with respect to "grievances,
labor disputes, wages, rates of pay, hours of employment, or conditions of
work"? The decided cases have rarely been definitive except in deciding
when a course of conduct has transgressed the line of prohibition. We say
a "discussion group" falls short; a "trading group" is covered. The authority
for this proposition is the Administrative Decision of N. L. R. B. General
Counsel, Decision No. 228 (1952) ("Advisory committee of employees who
met with employer to discuss business problems, including pay and working
conditions was not labor organization" quote from CCH Labor Law Service,
par. 1690, 335.)
This brief needs at this point to lay two basic premises: First, the word "deal"
as here used embodies the concept of "collective bargaining," does not include
a mere "discussion group"; and Second, when an organization, set up for
other purposes, crosses the line into "dealing" or "collective bargaining," only
the illegal phase of the organization's conduct is enjoined by the Board.
The statute, Section 2 (5), defines a labor organization as follows:
The term "labor organization" means any organization of any kind, or any
agency or employee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part, of dealing
with employers concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.
This definition has been broadly drawn and is broadly construed. The follow-
ing cases, from the Third, Sixth, and Seventh Courts of Appeal, involving committees
similar to the instant one, are illustrative.
N. L. R. B. v. Jas. H. Matthews & Co., 156 F. 2d 706 (C. A. 3). Here the
employer set up a manufacturing or junior board composed of employee representa-
tives, elected by the employees. The issues, contentions, and facts and the court's
conclusions thereon, are thus stated in the court's opinion.
But the Company says this was not a labor organization. Labor organiza-
tions, it contends, make demands, fight, negotiate. We are cited to 14 char-
acteristics of such organizations that might be found in any standard text book
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on labor problems . This Junior Board , says the Company, is but a committee
of the workers designed to discuss and make recommendations to manage-
ment about production problems. It follows, the argument runs , the general
plan recommended for labor-management committees which were organized
to help solve various types of production problems and increase output during
the late war and earlier . It may be added that there was a committee of
this Junior Board that served just that purpose.
This phase of the case perturbed us considerably at the argument for we
were reluctant to reach a conclusion that labor and management cannot con-
fer about production problems without violating the Act . Subsequent ex-
amination of the record , however , removes any source of perturbation. The
scope of activities of this Junior Board went far beyond that of a labor-
management committee . The Board had several committees . One of these
was specifically named "The Suggestions and Grievance Committee ." There
was a "Safety Committee" and a "Personnel Committee " which was to labor
for "ever-improving working conditions * * * " The minutes of its meet-
ings show that the Junior Board discussed [ emphasis supplied ] such matters
as the rates of pay, hours of employment , retirement plan, profit sharing sys-
tem, wage raises , vacation pay, working hour schedules , Saturday work, pay-
day change Its minutes show consideration and recommendation of at least
one discharge case. . . When the activities of the Junior Board are put down
beside the statutory definition of a labor organization the conclusion seems
pretty clear that the Junior Board fits in perfectly with the Congressional
definition.
The missing link, according to argument for the respondent here, is in the
word "dealing ." Respondent says that this Junior Board did not deal, it only
recommended and that final decision was with management . Final decision
is always with management , although when a claim is made by a well organized,
good sized union, management is doubtless more strongly influenced in its
decision than it would be by a recommendation of a board which it, itself,
has selected and which has been provided with no fighting arms. We think it
clear that the Junior Board was a labor organization , that it was Company-
fostered and dominated and that the Board was clearly right in ordering its
disestablishment . In so doing we are in no way even suggesting the illegality
of a program of labor-management committees.
N. L. R. B. v. General Shoe Corp ., 192 F. 2d 504 (C. A. 6), cert. denied 343
U. S 904. In this case the employer established five committees : advisory, grievance,
benefit, safety , and finance . The employees elected committeemen , or representa-
tives, to these committees on a departmental basis, at elections held at regular
intervals in the various departments of the plant . These various committees met
with management and performed the functions hereinafter described . The advisory
committee was formed for the purpose of affording "an opportunity for employees,
individually or collectively , to have a voice in management." It also served as "an
advisor on future company policy that directly affects the employees ," and handled
"suggestions and questions ." "Anticipated changes in policy affecting employees"
were also brought before the committee "for its opinion ." The committee had
no authority however, "to make final decisions ." 8 The grievance committee handled
the usual type of employee complaints , such as discharges , layoffs, seniority , favor-
itism, and working conditions ; making recommendations to the vice president of
the company as to disposition of the complaint . The benefit committee provided
financial aid to employees in cases of illness or injury , and provided death benefits
to employees ' families. The function of the safety committee was to consult and
make recommendations to management on matters concerning physical conditions
in the plant affecting employee health or safety . The finance committee operated
lunch and snack bars, Coca -Cola machines , and similar concessions in the plant.
Revenue from these was placed in an employee fund and disbursed by the finance
committee for employee athletic, recreation , and social purposes.
The Trial Examiner in the General Shoe case held that four of the committees
were labor organizations . As to the fifth , the finance committee , he recommended
dismissal , on the ground that it was not labor organization However, the Board,
with the apparent approval of the court of appeals , found all five committees to
be labor organizations . The basis for the Board 's finding as to the finance com-
mittee was that its funds had been used on occasion to purchase motion picture
8 The quotations are from the court opinion and the Intermediate Report
TEXAS CITY CHEMICALS, INC. 231
projectors to exhibit films in the plant; and further, that the funds might be used
to purchase records and sound equipment for the playing of music in the plant.
The Board, on the authority of the Matthews opinion, specifically rejected a
contention of the Respondent in the General Shoe case (90 NLRB 1330) to the effect
that an employer could deal with or discuss conditions of employment with a commit-
tee of employees without the committee becoming a labor organization The Board
said of this contention (footnote 11) :
The Respondent, in its brief, contends that labor organizations have not pre-
empted the field of collective bargaining to the extent that a committee dealing
with or discussing grievances, wages, hours, or conditions of employment must
necessarily constitute a labor organization within the meaning of the Act. In
view of the discussion afforded this contention in cases holding to the contrary,
we find it unnecessary at this time to discuss it again. See N. L. R B. v James
A. Matthews & Company, 156 F. 2d 706 (C. A. 3). [Emphasis supplied.]
Concerning the activities of the advisory committee in the General Shoe case, the
court of appeals said the following:
Minutes of the Advisory Committee's meetings reveal that a wide variety of
topics concerning the employees, including wages and rates of pay, hours of em-
ployment, conditions of work, efficiency of production, and recreational activities
were discussed At various meetings, the subject of discussion has embraced
compensation for holiday work, vacation pay, minimum guaranteed wages, gen-
eral wage increases, job classification, wage determining methods, overtime work,
lunch and rest periods, regularity of employment and job security, discrimination
in job assignments, determination and application of seniority, procedure for
layoffs, reduction of waiting time for work, unsafe or improperly guarded equip-
ment, improvements of facilities and equipment, lighting, heating and ventilation,
parking facilities, maintenance of cleanliness of plant and equipment, and many
other matters affecting working conditions. [Emphasis supplied.]
In affirming the Board's conclusions the court of appeals further said
He [the trial examiner] rejected the argument of respondent that there is no
evidence showing that the committees at any time engaged in collective bar-
gaining with it. He pointed out that the evidence amply shows that the Respond-
ent discussed, advised and dealt with all four committees concerning grievances,
wages, hours, and other terms and conditions of employment; and that neither
an agreement nor actual bargaining is essential to a finding that an organization
is a labor organization within the meaning of the Act. [Emphasis supplied.]
. the activities and functions of the committees in dealing with the Re-
spondent Company's management concerning the numerous matters which have
been specified constitute a labor organization within the coverage of the statute.
Indiana Metal Products Corp., v. N. L. R B., 202 F. 2d 613, 620 (C. A. 7). The
facts in the Indiana case, and the court of appeals conclusions thereon, are stated
in the following excerpts from the court's opinion:
We consider next the Advisory Committee. After August 2, 1950, several
employees approached manager Schroeder, suggesting the possibility of a com-
mittee of employees to discuss various employee problems with him. On Oc-
tober 2, by a notice posted on the plant bulletin board, Schroeder notified the em-
ployees that an election would be held among them for the purpose of selecting
an Advisory Committee, to consist of an employee representative from each
department in the plant. Thereafter nine departmental representatives were
selected. This committee and Schroeder met for the first time on October 20,
and the committee members were then informed that they were "at liberty to
discuss anything they wanted in any form, shape or manner" Thereafter
meetings were held at regular intervals and a wide variety of subjects affecting the
employees' wages, hours and conditions of employment were considered. The
meetings were held on company time and on company premises. There is here no
denial of the company's domination Therefore, if the Advisory Committee was
a labor organization under the definition in Sec. 2 (5) of the Act, the com-
pany's domination of it clearly constituted a violation of Sec. 8 (a) (1) and
(2). . . . The Board so found.
The company urges that the Advisory Committee was not a labor organization
within the meaning of Sec. 2 (5) of the Act, pointing out that the committee had
no officers, constitution, by-laws, dues or treasury, and that it was not recognized
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the representative of the employees for collective bargaining purposes. The
company insists that the committee did not "deal" with the employer.
The legislative history shows that the definition of the term "labor or-
ganization" [ in Section 2 (5) ] was purposely phrased very broadly.
Manager Schroeder's initial notice stated that the Advisory Committee was
for the purpose of discussing "grievances, seniority, promotions, insurance, em-
ployee welfare," and "working conditions." It is without dispute that representa-
tives of the employees met from time to time with company officials and discussed
questions affecting wages, hours of employment and working conditions. The
minutes of the meetings of the Advisory Committee show that recommendations
made by the committee were frequently carried out or agreed to by the manage-
ment.
A claim by the company, quite similar to the one made here, that a "junior
board" did not "deal with" or "bargain with" management was rejected in
N. L. R. B. v. Jas. H. Matthews & Co., 3 Cir., 156 F. 2d 706, 707-8. Also, the
fact that the Advisory Committee had no formal organization does not prevent
it from falling under the definition of a labor organization in the Act. This
court has recognized that "such loosely-formed committees * * * constitute
labor organizations within the meaning of the Act." N. L. R. B. v. American
Furnace Co., 7 Cir., 158 F. 2d 376, 378.
There is substantial evidence in the record taken as a whole to sustain the
Board's finding that the Advisory Committee was established to provide the em-
ployees with a substitute for a bona fide collective bargaining representative, and
that in practice the committee has functioned as a vehicle for the discussion, con-
sideration and improvement of working conditions. Also, the Board's finding
that the company's domination of the committee violated Sec. 8 (a) (1) and
(2) must likewise be sustained. [Emphasis supplied.]
The purposes and operations of the Advisory Council in the instant case are not
distinguishable in any substantial material respect from the committees found to
constitute labor organizations in the Matthews, General Shoe, and Indiana Metal
Products cases. And see two recent decisions of the Board disestablishing organ-
izations similar to the present one: Standard Coil Products Co, Inc., 110 NLRB
412; Ed Taussig, Inc., 108 NLRB 470. See also Stow Mfg. Co., 103 NLRB 1280,
enfd. 217 F. 2d 900 (C. A. 2).
The Standard Coil Products decision was issued on October 20, 1954. In that
case, as here, the respondent contended that the committee involved was a legiti-
mate medium of communication with employees, and urged that the General Shoe
case should be reexamined. In rejecting these assertions, Trial Examiner Bellman,
whose Intermediate Report was adopted by the Board, said the following:
The core of the Respondent's position with respect to the Committee is that
it is not a labor organization proscribed by the Act, but rather "a legitimate
medium of communication with its employees." The following paragraph ap-
pears at the beginning of an ably written section of the Respondent's brief
devoted to the defense of said position:
At the outset of the argument in support of the Committee, we wish to
point out to the Trial Examiner that we are not unaware of the Board and
Court decisions on employee representation committees which have, in the
past, construed provisions of the sections 8 (a) (2) and 2 (5) of the Act
in the very extreme manner exemplified by the leading case of N. L. R. B.
v. General Shoe Corporation, 90 NLRB 1339, 192 F. 2d 504 (6th Cir.,
1951), cert. den. 343 U S. 904, . . . We say, however, that to the extent
that the rule laid down in those cases has any application to the facts of
this proceeding, that rule must be reexamined in the light of the times
and the true meaning of the sections of the Act which the rule is sup-
posed to construe.
In disposing of these contentions Trial Examiner Bellman said:
I have carefully evaluated all of the facets of the arguments advanced
by the Respondent to support its contention that "the time has come to rec-
ognize the change in the factual situation in the field of labor relations, as re-
flected in the amendments to the Act, and at least to modify the rule of the
General Shoe case so that it does not strike down necessary and proper media
of communication between employers and employees." Having done so, it is
my considered judgment that the Respondent's position can not prevail, and
that the Committee is well across the tenuous line which separates "legitimate
means of communication" from labor organizations.
TEXAS CITY CHEMICALS, INC. 233
Those cases are apposite and controlling here
As was so in the Indiana Metal Products case, the instant Advisory Council
discussed , considered, and advised management with respect to a wide variety of
conditions of employment. Like a labor organization, it represented employees.
As Production Coordinator Seyfried's statement in the stipulation, in effect, says,
it was, similarly to the committee in Indiana Metal Products a "substitute for a
bona-fide collective bargaining representative." Seyfried's statement is that "In
setting up personnel relations, I thought that since we had no union we needed
some direct contract with the men." [Emphasis supplied.] Thus the initial moti-
vation for the creation of the Advisory Council was the absence of the representa-
tive relations provided by a labor organization. That the Council's purpose was to
handle matters involving terms and conditions of employment is clear from the
employees booklet or manual. Thus, the booklet said, "This Advisory Council will
represent the employees and present to management any problems and complaints
of their groups", it will "consult and advise on policies and practices that affect
the company or employees", and it "discusses and advises with management on any
condition affecting the welfare of our employees."
Insofar as these "problems," "complaints," "policies," and "practices" compre-
hend such matters as grievances, wages, hours, and other terms and conditions of
employment, their "presentation" and "discussion," and "consultation" and "advice"
thereon are indisputably prime functions of a labor organization.
It is true that the booklet declares that the Advisory Council is "not a bargain-
ing unit." But what precise functions of a bargaining representative are thereby
excluded is not clear. The Respondent's brief suggests that the phrase "bargain-
ing unit" was intended to be synonymous with "bargaining agent." Whatever the
intent, the Advisory Council plan established a procedure in which employee rep-
resentatives submitted to management for consideration and discussion, and were
consulted by management respecting, any question concerning employment condi-
tions in the plant, with a view to establishing or revising the conditions where dis-
cussion revealed the appropriateness of such disposition However it be character-
ized, such an organization is one "which exists for the purpose . of dealing
with employers concerning grievances , labor disputes, wages, rates of pay, hours of
employment, or conditions of work."
Particularly is that so where, as here, there is a definite and permanent employee
organization , with provision for continuity, formal procedure for the selection of
representatives involving direct employee participation therein by periodic elec-
tions, regular and fixed terms of office of the representatives, stated functions for
the organization to perform, and regular meetings with management in which those
functions are discharged. The Advisory Council is thus not a temporary aggrega-
tion of individuals catalyzed by occasional crisis into fleeting form and, like a snow-
drop, disappearing when the crisis has passed. It has projected stability of struc-
ture and duration, of procedure and of function. It is, in sum, a permanent organ-
ization with which the Respondent regularly deals concerning terms and condi-
tions of employment
The Administrative Decision No. 228 of the General Counsel, dated January 28,
1952, cited by the Respondent in its brief, is not applicable authority here In
that case the General Counsel refused to issue a complaint on a charge of illegal
domination and support of an advisory committee by an insurance firm. The rea-
son stated for this action was that the committee was not a labor organization.
The facts, so far as here relevant, were thus stated by the General Counsel in his
opinion:
(1) The committee has met annually with the principal officers of the com-
pany since it was evolved by the company in an effort to establish closer contact
between the home office and field personnel.
(2) Each year, the company has invited five of the top producers among
the field underwriters to be on the committee. The committees were not always
made up of the same men nor was their life extended beyond the duration of
any conference.
(3) The committee does not purport to represent anybody or any group of
people. The company has stated that it wants the members of the committee
to give their individual reaction and judgment on the problems discussed.
(4) The purpose of the meetings between the committee and the company's
principal officers is to discuss any problem affecting the company and its opera-
tions that either group wishes to discuss. Hours, compensation and working
conditions have been among the subjects discussed
Apart from other distinctions, and apart from the fact that the General Counsel's
opinion cannot bind the Board (West Texas Utilities Co., 85 NLRB 1396. 184 F.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2d 233 (C. A. D. C.); Betts Cadillac Olds, Inc., 96 NLRB 268, 272), it will be
seen from the General Counsel 's statement of facts that the committee in that case
was not an organization of employee representatives : its members acted solely as
individuals . That committee was therefore quite different in character from the
organization here involved.
E. Domination, interference, and support
The Respondent's answer neither admits nor denies the General Counsel's allega-
tion that the Respondent dominated the Advisory Council. The Council's answer
denies all the material allegations in the complaint.
It is apparent from the statement of facts in the stipulation that the Respondent
initiated and formed the Advisory Council. The Respondent established the plan
of organization, put the plan into operation, conducted elections of employee repre-
sentatives, and provided all the facilities and supplies necessary for the Council's
functioning. Such action so clearly constitutes domination and support, and inter-
ference with the administration, of a labor organization, as not, at this late day,
to require citation of authority.
It is consequently found that the Respondent initiated, formed, and sponsored the
Advisory Council, and that from August 1953 the Respondent has assisted, domi-
nated, contributed support to, and interfered with the administration of the Advisory
Council, in violation of Section 8 (a) (2) of the Act; thereby interfering with, re-
straining, and coercing employees in violation of Section 8 (a) (1) of the Act.
That the employees may have had the power, as did the guards, to withdraw from
the Advisory Council, does not change the essential characteristics of the group as a
labor organization; nor does it make the Respondent's domination and support of,
and interference with, it any less illegal.
F. Scope of the Order
Both the Respondent and the Advisory Council have requested that, in the event
any of the activities of the Council are found to be illegal, detailed findings be made
as to which features of its operations are interdicted To this end the Council, in
particular, has filed requests for specific rulings on some 23 aspects of the matters
handled by the Advisory Council.
The activities of the Advisory Council are, of course, within the reach of Section
8 (a) (2) only insofar as the Council operates as a labor organization. Raybestos-
Manhattan, Inc., 80 NLRB 1208, 1209; Reynolds Corp., 61 NLRB 1446. The Order
recommended hereinafter is therefore directed to the Council only to that extent.
I have endeavored heretofore to interpret the definition of labor organization in
Section 2 (5) of the Act as specifically as possible, in order that the parties may
be apprized of their rights and obligations under the law as I construe it; and in
order that they may have some guides for future conduct.
The points on which the Advisory Council requested specific rulings may be
broken down as follows.
1. Handling of proceeds of plant vending machines: With respect to this item,
assuming that none of these funds are used in such fashion as to come within the
prohibitions described in the Board's opinion in the General Shoe case, supra. I
apprehend no reason why an organization, not otherwise a labor organization, can-
not be lawfully established for the purpose of disposing of the proceeds of plant
vending machines, so long as the funds are not used for the support or assistance
of a labor organization or to interfere otherwise with employee rights guaranteed
in the Act. I therefore see nothing objectionable in the expenditure of such funds
for funerals, recreation groups, soft ball, and bowling teams if the disbursements
are not by, for, or in opposition to, a labor organization, or in connection with
organizational activity under Section 7.
2. Credit union: 1 perceive nothing illegal in the Respondent's establishing a
credit union, so long as it is not otherwise a labor organization. Axelson Mfg. Co,
88 NLRB 761, 777.
3 Discussion of pay for representatives while attending Advisory Council meet-
ings during working hours: The proviso to Section 8 (a) (2) states that, "subject
to rules and regulations made and published by the Board an employer shall
not be prohibited from permitting employees to confer with him during working
hours without loss of time or pay." The Board has not published any rules or
regulations in this regard. I therefore see no illegality in this type of discussion,
unless there are circumstances justifying a conclusion that the payments have the
purpose or effect of interfering with employee rights under the Act.
TEXAS CITY CHEMICALS , INC. 235
4. Safety hazards, suitability of work clothing, additional drinking fountains,
processing of insurance claims, job designation or description, shift differential,
work jurisdiction, seniority, employee parking facilities, overtime pay, holidays,
operational plans, status of temporary employees, equalization of pay, miscellaneous
employee requests relating to working conditions: These items all directly involve
either rates of pay, wages, hours of employment, or other terms and conditions of
employment. An organization which deals with an employer with respect to them
is consequently a labor organization.
5. On other matters on which specific rulings are requested the record is too sparse
to justify opinion. In this category are such subjects as "supervisory staffing," and
stock purchase. In the case of supervisory staffing the record does not disclose
sufficient facts to enable me to arrive at an intelligent judgment as to whether, under
the circumstances, the issue involved terms or conditions of employment. Similarly,
the information submitted is inadequate for a determination as to whether a stock
purchase program discussed by the Council is of such character as to involve wages
or conditions of employment within the meaning of Richfield Oil Corporation, 110
NLRB 356 Similarly, with regard to "discussion and agreement with respect to new
products of the company," the record is too meagre
These matters may or may not involve conditions of employment, depending upon
the context in which they arise, and the manner of their handling. Determination
as to them will therefore have to await further factual elaboration
6. Composition and structure of the Advisory Council: Whether these are properly
matters for discussion and agreement between the Advisory Council and the Re-
spondent turns upon whether or not the Council is a labor organization. If it is,
such action by management constitutes a direct interference in the formation and ad-
ministration of the organization in violation of Section 8 (a) (2), if it is not, there
is no prohibition against it.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair labor
practices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act
It has been found that the Respondent initiated, formed, sponsored, assisted, domi-
nated, contributed to the support of, and interfered with the administration of the
Advisory Council, a labor organization of its employees. It will therefore be rec-
ommended that the Respondent cease and desist from such conduct, and further, that
the Respondent disestablish said Advisory Council as the representative of any of its
employees for the purpose of dealing with it concerning grievances, labor disputes,
wages, hours of employment, or other terms or conditions of employment, and that
the Respondent refrain from recognizing the Advisory Council, or any successor
thereto, for any of the foregoing purposes
On the basis of the above findings of fact, and upon the entire record in the case,
I make the following
CONCLUSIONS OF LAW
1. The operations of Texas City Chemicals, Inc., Texas City, Texas, occur in com-
merce within the meaning of Section 2 (6) of the Act.
2. Oil, Chemical and Atomic Workers International Union, CIO, and Advisory
Council of Texas City Chemicals, Inc., are labor organizations within the meaning
of Section 2 (5) of the Act.
3. By initiating, forming, sponsoring, assisting, dominating, contributing to the
support of, and interfering with the administration of Advisory Council of Texas
City Chemicals, Inc., the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (2) of the Act
4. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The Respondent has not committed the following unfair labor practices alleged
in the complaint: (a) Interrogation of employees as to union affiliations; (b) threats
and warnings to employees to refrain from assisting, becoming, or remaining mem-
bers of Oil, Chemical and Atomic Workers International Union, CIO, (c) threats
and warnings to employees to assist, become, or remain members of the Advisory
Council, and (d) keeping under surveillance the concerted activities of employees.
[Recommendations omitted from publication.]
Natona Mills, Inc. and United Textile Workers of America, AFL,
Petitioner . Case No. 4-RC-2595. April 18, 1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Thomas J. Walsh,
hearing officer . The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case , the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and ( 7) of the Act.
The Intervenor has been the recognized bargaining representative
of the employees involved herein . Its collective -bargaining agree-
ment with the Employer, executed on March 3 , 1953, was opened 2 by
timely notice given by the Employer on October 26 , 1954. Negotia-
tion meetings were held in November and December 1954 and Janu-
ary 1955, and final agreement was reached on January 12, 1955.3
Thereafter , the terms of the agreement were presented to the union
membership by its branch president , Patrick, at a regular meeting on
January 14 , 1955, and approved unanimously . Plant Manager Weis-
ler, for the Employer , received verbally official notification of the ap-
proval on January 17 and proceeded to have the agreement prepared
in written form.4 The rate of pay increase covered by the agreement
i Branch A-23, Lever Auxiliary Section of the Amalgamated Lace Operatives of America,
herein called the Intervenor, was permitted to intervene at the hearing on the basis of a
contractual interest
2 This contract, effective until December 31, 1954, and automatically renewable there-
after from year to year, contained an annual 60-day reopening clause
3 Representing the Intervenor at the various negotiation meetings were Branch Presi-
dent Patrick who attended all such meetings, Section President Winogrodzki who attended
all but the first one, and various committee members who attended from a few to all meet-
ings For the Eniplover, and present at all meetings, iweie Plant Manager Weisler together
with the director of research and development and a vice president
4 The fact of ratification by the membership first came to the attention of Weisler by
means of a newspaper article published on January 15, 1955
112 NLRB No 36.