The Dow Chemical Co.

National Labor Relations Board - Board Decisions

Jun 16, 1941

32 N.L.R.B. 660 (N.L.R.B. 1941)

In the Matter of THE Dow CHEMICAL COMPANY and BROTI-TERHOOD
OF CHEMICAL WORKERS
In the Matter of THE Dow CHEMICAL COMPANY and LOCAL 72075,
DISTRICT 50, UNITED MINE WORKERS OF AMERICA
Cases Nos . B-0604 and R-,0605 .-Decided June 16, 1941
Jurisdiction : chemical products manufacturing industry.
Investigation and Certification of Representatives : existence of question: em-
ployer refuses to recognize any labor organization unless and until it is
certified by the Board ; labor organization not found to be a successor to or
continuation of an organization previously ordered disestablished, placed on
ballot ; election necessary.
Unit Appropriate for Collective Bargaining : all hourly, piece rate, and day rate
employees of the Company at the Midland plant, excluding employees of Bay
City Dowmetal Engineering Lab and Bay City Dowmetal Foundry, office
employees, clerical employees, supervisory employees, foremen, subforemen,
and plant protection men ; stipulation as to.
Mr. Colonel C. Sawyer and Mr. Earl B. Cross, for the Board.
Mr. Calvin A. Campbell, Mr. William A. Groening, Jr., and Mr.
C. Emmon Price, of Midland, Mich., for the Company.
Mr. Maurice Sugar, by Mr. Jack Tucker, of Detroit, Mich., for the
U. M. W. A.
Mr. Ralph H. Bower, of Midland, Mich., for the B. C. W.
Mr. Daniel J. Harrington, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 15 and May 17, 1941, Brotherhood of Chemical Workers,
herein called the B. C. W., filed with the Regional Director for the
Seventh Region (Detroit, Michigan) a petition and an amended
petition; respectively, alleging that a question affecting commerce
had arisen concerning the representation of employees of The Dow
Chemical Company, Midland, Michigan, herein called the Company,
i Referred to incorrectly in the formal papers as Dow Chemical Company and Dow
Chemical Co.
32 N. L. R. B., No. 123.
660
THE DOW CHEMICAL COMPANY 661
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. On May 17, 1941, Local 12075,
District 50, United Mine Workers of America, herein called the
U. M. W. A., filed a similar petition.2 On May 19, 1941, the Na-
tional Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, ordered an investigation, and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice, and, acting pursuant to Article III, Section 10 (c)
(2), of said Rules and Regulations, ordered that the cases be
consolidated.3 .
On May 20, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon the B. C. W.,
and upon the U. M. W. A.4 In the notice of hearing the parties Were
notified that evidence would be received on the issue of whether the
B. C. W. is a successor to or continuation of The Midland Chemical
WTorkers' Association, herein called the M. C. W. A., heretofore ordered
disestablished by the Board.5 Pursuant to notice, a hearing was held
on May 26 and 27,1941, at Midland, Michigan, before James C. Batten,
the Trial Examiner duly designated by the Chief Trial Examiner.
The Board, the Company, the B. C. W., and the U. M. W. A. were rep-
resented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties. During the
course of the hearing the Trial Examiner made several rulings on mo-
tions and on objections to the admission of evidence. The Board has
2 The petition was filed by United Mine Workers of America, District 50 At the hearing
counsel for the U. M. W. A. moved to amend the name to read Local 12075, District 50,
United Mine Workers of America. There was no objection to the motion and the Trial
Examiner granted it, ruling that all the papers in the case be amended accordingly.
3 On May 27, 1941, the Board issued a corrected order directing investigation and hearing
and consolidating the cases.
* Copies were also served upon International Brotherhood of Electrical Workers, upon
International Union, United Automobile Workers of America, C I. 0., upon international
Association of Machinists , Detroit, Michigan, and upon International Association of Ma-
chinists , Washington, D. C. None of these organizations appeared at the hearing or other-
wise participated in the proceedings.
c In Matter of The Dow Chemical Company and United Mine tiVorkers of America, District
No 50, 13 N. L R. B. 993, the Board found, among other things , that the Company had
dominated and interfered with the formation and administration of the M C W. A. and
ordered it to cease and desist therefrom , to withdraw all recognition from and completely
disestablish that organization as representative of any of its employees for the purpose of
dealing with the Company concerning grievances , labor disputes , wages, rates of pay, hours
of employment , or conditions of work, and to post appropriate notices. On February 6,
1941, in National Labor Relations Board v. The Dow Chemical Company, , 117 F. (2d) 455,
the United States Circuit Court of Appeals for the Sixth Circuit enforced the Board's
order, as modified, in respects not here material.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reviewed the rulings of the Trial Examiner and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed.
`Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Dow Chemical Company is a Michigan corporation owning
plants at Midland and Bay City, Michigan, and elsewhere. At its
Midland plant, the only one involved in this case, the Company pro-
duces a great number of industrial chemicals. During 1937 the Com-
pany's gross sales amounted to in excess of $15,000,000, more than 75
per cent of the products sold being shipped in interstate commerce.
During the same year the Company purchased chemicals, of a value in
excess of $2,000,000, more than 75 per cent of which it purchased out-
side the State. At the time of the hearing the gross sales and purchases
of the Company and the percentage of each involved in interstate com-
lnerce were substantially the same as during 1937.
II. THE ORGANIZATIONS INVOLVED
Brotherhood of Chemical Workers, a Michigan corporation, is an
unaffiliated labor organization, and Local 12075, District 50, United
Mine Workers of America, is a labor organization affiliated with the
Congress of Industrial Organizations, admitting to membership
employees of the Company at its Midland plant.
III. THE QUESTION CONCERNING REPRESENTATION
The B. C. W. and the U. M. W. A. have each requested recognition
from the Company as exclusive bargaining agent of the , hourly, piece
rate, and day rate employees in the Midland plant. The Company
refuses to recognize any labor organization as such , representative un-
less and until it is certified as such by the Board.
A statement made at the hearing by counsel for the Board shows that
the B . C. W. and the U. M. W. A. each represents a substantial number
of employees in the unit hereinbelow found to be appropriate for the
purposes of collective bargaining.'
We find that a question has arisen concerning the representation of
employees of the Company. .
'Counsel for the Board stated that there were submitted to the Regional Office applica-
tion cards and records of dues-paying members of the B. C. W. and application cards of the
U. Al. W. A., that the signatures on all such cards appeared to be genuine , that the B. C. W.
cards were undated and those of the U. M. W. A dated between February and May 1941,
and that the names on a substantial number of the cards of each organization appear on
the pay roll of the Midland plant of May 26, 1941.
THE DOW CHEMICAL COMPANY 663
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
,COMMERCE
' We find that the question concerning representation which has arisen,
occurring in connection with the operations of the Company described
in Section I above, has a close, intimate, and substantial relation to
trade, traffic, and commerce among' the several States, and tends to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE APPROPRIATE UNIT
`At the hearing all parties stipulated and we find that" all hourly,
piece rate, and day rate employees of the Company at the Midland
plant, excluding employees of Bay City' Dowmetal Engineering Lab
and Bay,'City Dowmetal Foundry, office employees; clerical employees,
supervisory employees, foremen, 'subforemen, and plant protection
men, constitute a unit appropriate for the purposes of collective bar-
gaining. We further find that such unit will insure to employees of the
Company the full benefit of their'right to self-organization and to col-
lective bargaining and othewise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the' repre-
sentation of employees of the Company can best be resolved by, an
election by secret ballot.
At the hearing; pursuant to notice thereof, evidence was taken on
the issue of whether the B . C. W. is a successor to or continuation of
the M. C. W. A. , In substance , that evidence discloses that prior to
February 10, 1941 , the M . C. W. , A. had ordered the printing of
petitions for the establishment of an independent organization in the
plant; that on February 10, 1941; 4 days after the decision of the
Circuit ' Court of Appeals referred to in footnote 5, supra, a group
of employees , none of whom was an official of the M. C. W. A ., insti-
gated the formation 'of the B. C. W.; that this group paid for and
had the petitions circulated in the plant during the lunch period; and
that, following a series of organizational meetings not participated in
by any of the officials of the Company or-the M'. C. W. A ., the B. C. W.
was formally established on March 7, 1941. None of the assets or
properties of the^M . C. W. A. was acquired, or utilized by the B. C. W.
On the record presented we do not find that - the B . C. V. is a suc-
cessor to or continuation ' of the M. C. W. A . The name . of ' the
B. C: W. will therefore be placed on the ballot:' '
At the hearing the parties agreed that the Company 's pay roll
of May 26 , 1941 , at 8 a. in. , be used as the basis for determining'eli-
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gibility to vote in the election. We construe the agreement to include
such limitations and additions as are usually set forth in our Direc-
tions of Election. As thus construed, we see no reason to depart
from the wishes of the parties, and we shall direct accordingly.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of The Dow Chemical Company, Midland,
Michigan, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the Act.
2. All hourly, piece-rate, and day-rate employees of the Company
at its Midland, Michigan, plant, excluding employees of Bay City
Dowmetal Engineering Lab and Bay City Dowmetal Foundry, office
employees, clerical employees, supervisory employees, foremen, sub:
foremen, and plant, protection men, constitute a unit appropriate for
the purposes of collective, bargaining. within the meaning of Section
9 (b) of the Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Reg ulations-Series 2,
as amended, it is hereby,
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with 'The Dow Chemical Company, Midland, Michigan, an election
by secret ballot shall be conducted as, early as possible; but not later
than thirty (30) days from the date, of this Direction, under, the
direction and supervision of the Regional Director for the Seventh
Region, acting in this matter as agent for the National Labor Rela-
tions Board and subject to Article III, Section 9, of said Rules and
Regulations, among all hourly, piece-rate, and day-rate, employees
at the, Midland, Michigan, plant of The Dow Chemical Company,
whose names appear on the pay, roll of the Company of May 26, 1941,
at 8 including employees, whose names do not appear upon
such pay roll because they were ill or on vacation or in the active
military- service or training of the United States, or temporarily laid
off, but excluding employees of Bay City Dowmetal Engineering Lab
and Bay, City Dowmetal Foundry, office employees, clerical employees,
supervisory- employees, foremen, subforemen, plant protection =men,
and those who have since quit or been discharged for cause, to deter-
'T'HE DOW CHEMICAL COMP'AN'P 6'65
mine whether they desi'i e to be 'repr'esented by Brother-hood of Chd n-
ical Workers or by Local 12075, District'50, United 'Mine Workers rof
America, for the purposes Of collective bargaining, or by neither.
MR. EDWIN S. , SMITH, dissenting :
I dissent from the-findings of the majority, that ^the record'does not
establish that the B. - C. W. is -a successor to or continuation -of the
M. C. W. A. The -activities'culminating in the dstablishm`ent of the
B. C. W. had their inception 'either iinmediately prior to or at 'a
meeting of the M. C. W. A. held 4 days -subsequent to the decision of
the United States Circuit Court of Appeals for the Sixth 'Circuit
ordering enforcement of the Boa-H's Order' disestablishing the M. -C.
W. A. On that occasion -the president of the M. C. W. A. announced
that -that orrgaiiization,could no longer function ^a"nd that the employees
could form another -union. The Company did not post -notices of the
disestablishment'of the M. C. W. A., in 'accordance with the 'Court's
decree, 'until April 4, 1941, when the B. C. W. was already well'estab-
lislied. At the time 'of the formation 'of the •B. 'C: W. the Company
"had -done nothing to 'mark the'sepa'ration between the two, and pub-
licly to -deprive the successor of the advantage of its -apparently
continued -favor." 7 -
'The Board has uniformly, held that the `effects of employer tdomina-
tion of 'a labor organization can be dissipated and the employees'
freedom of 'choice restored -only by the complete disestablishmennt of
sueh labor orga'nization. As early as -our -decision in Matter of Wheel-
ing Steel Corporation 8 we stated :
Simply to 'order the respondent to 'cease supp'o'rting 'and iri'ter- _
ferin'g with "the 'Councils would'not set free `the emp'loyee's impulse
to seek 'the 'organizati'on Which would inos"t 'effectively `represent
him. We cannot 'compl'etely eliminate the force 'which the `r`e-
spondent's power exerts upon the employee. it -tlie Councils
will, if permitt'e'd to ''continue as 'r"epresen'tatives, provide The
respondent with a 'device by *hi'ch i't`s power may 'n`o'w be made
effective unobtrusively, almost without furthCi action 'on it`s part.
Even though he would not have freely chosen the Council as an
initial proposition, the employee, once having ch'o'sen, niay by
force of 'a timorous habit, be held 'fi`rml`y to his choice. The efn-
ployee must -be releas'ed from these umawful compuls'ion`s. COn-
sequently the respondent -must affirmatively withdraw recognition
from the Departmental and General Councils, as 'organizati'ons
for the ' purpose of collective bargaining upon behalf of its
employees. •
7Westinghouse Electric & Manufacturing Co v N. L R B.. 112 F (2d) 657 (C. C. A. 2),
affirmed per cntrthin 312 U. S 660
81 N. L R B. 699, decided May 12, 1936.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The courts have uniformly followed the Board's findings in this
respect and enforced- its disestablishment orders, the Supreme Court,
in the' Pacific Greyhound case,9 having adopted the Board's own lan-
guage in doing so16
Where a new organization has been formed following employer
domination of an old, the Board and the courts have also long recog-
nized the continuing character of the pattern of domination thus
established, in the absence of some such "absolute and public cleavage
between the old ^ and the new" 11 as disestablishment. Such cleavage
is necessary in order to release the ' employees from the "unlawful
compulsions" to which they may be held "by force of a timorous
habit." As stated by the Supreme Court in the Newport News case 512
"the effects of the long practice [of employer domination and inter-
ference] cannot be' eliminated and the employees rendered entirely
Free to act upon their own initiative without the complete disestablish-
ment of the plan. . . . While the men are free to adopt any form of
organization and representation . . . their purpose so to do may be
obstructed by the existence and recognition by the management of an
old plan or organization the original structure or operation of which
was not in accordance with the provisions of the law.... As pointed
out in National Labor Relations Board v. Pennsylvania Greyhound
Lines, 303 U. S. 261, disestablishment of a bargaining unit previously
dominated by the employer may be the only effective way of wiping
the slate clean and affording the employees an opportunity to start
afresh in organizing for the adjustment of their relations with the
employer." 13
In the instant case , the Company took no measures until after the
B. C. W. was well established "completely to disabuse the employees
of any belief that they [would] win the employer's approval if they
remain in it, or incur his displeasure if they leave." 14 "What meas-
ures will be enough," it has been held,15 "the Board is to judge," but
here, as in the Westinghouse Electric case '16 "the company did not
make any effort to make it plain to the employees generally" that the
B. C. W. did not have the same favor as had been bestowed upon the
M. C. W. A.
To hold that the Company's employees were able freely to exercise
a choice in forming, or joining the B. C. W. prior to the Company's
taking any action to remedy its unfair labor practices dating back
IN. L. R. 'B. v. Pacific Greyhound Lines, Inc., 303 U. S. 272
10 303 U. S. 272, 275.
11 Western Union Telegraph Co. v. N. L. R. B., 113 F. (2d) 992 (C. C. A. 2).
13 N. L. R. B. v. Newport News Shipbuilding Company, 308 U. S. 241.
13 308 U. S. 241, 250.
14 Western Union Telegraph Co. v. N. L. R. B., 113 F. ( 2d) 992 (C. C. A. 2).,
15 Ibid.
l6 Westinghouse Electric & Manufacturing Co. v. N. L. R B., 113 F. (2d) 658 (C. C. A. 2),
affirmed per curiam. 312 U. S. 660
THE DOW CHEMICAL COMPANY 667
to 1937 is to neglect the realities of the situation and to ignore a
"whole congeries of facts" which the Supreme Court found so com-
pelling in the Link-Belt case.17 Here, as in that case, the employer
engaged in espionage.18 Here, as in that case, the employer expressed
opposition to outside labor organizations. Here, also, the Company
dominated and interfered with the formation and administration of
an inside organization, the M. C. W. A., indeed-encouraged mem-
bership therein by discriminating in regard to employees' hire and
tenure of employment.'9 And here, also, the Company failed "to wipe
the slate clean and announce that the employees had'a free choice" 20
in the matter."
Under these circumstances, there is ample basis to conclude, because
of the Company's close identification with the M. C. W. A. and policy
of fostering an inside employee labor organization, that the B. C. W.
could not appear otherwise than Company sponsored in the minds of
the employees. It is incredible that the purely formal and carefully
calculated steps here taken to show a transition from past domination
of the old organization to present independence of the new could
possibly persuade the generality of employees that they were being
handed anything other than a new edition of the old "inside" type of
labor organization which the employer had so long and markedly
favored. Any new inside union established immediately after a find-
ing of domination of a previous inside union, and with no counter-
vailing statement by the employer that an inside organization was no
longer to be favored, could not realistically be said to represent the free
choice of employees to establish a labor organization independent of
all consideration of what kind of organization would be most, likely
to meet with the employer's approval. -
Indeed, for the majority now to hold, as in effect it does, that the
B. C. W. was formed freely and unimpaired by the Company's prior
act not only runs counter to the factual realities, but also, following
a line of court decisions declaring and reiterating the necessity for
some "absolute and public cleavage" sufficient "to wipe the slate
clean" and restore employee freedom of choice, ignores the established
and accepted law on the subject.
I would not afford the B. C. W. a place on the ballot.
17 N. L R. B v. Link-Belt Company et at ., 311 U. S 584 -
Is Matter of The Dow Chemical Company and United Mine Workers of America, District
No. 50, 13 N. L. R.-B. 993.
10 On the present record there is also evidence , though scant , of supervisory interference
favoring membership in the B. C. W. Also, it should be noted that the petitions which led
to the formation of the B. C. W. originated with the BI . C. W. A.
20 N. L R B. v Link-Belt Company et al., 311 U. S. 584.
21 The Company did not announce disestablishment of the M. C. W. A. until almost two
months after the B. C W.'s formation