The Solvay Process Co.

National Labor Relations Board - Board Decisions

Feb 23, 1943

47 N.L.R.B. 1113 (N.L.R.B. 1943)

In the Matter of THE SOLVAY PROCESS COMPANY and L. U. #12103,
DISTRICT NO. 50, UNITED MINE WORKERS OF AMERICA, C. I. O.
Case No. C-1937.-Decided February 23,1943
Jurisdiction : chemical products manufacturing industry.
Unfair Labor Practices
Discriininatton: refusal to reinstate striking employees, found not discriminatory
when the strike was not caused or prolonged by unfair labor practices, em-
ployer prior to the request for reinstatement had eliminated the positions strik-
ers had held in the interest of efficiency, no positions were available for the
strikers, and under the circumstances the employer was under no duty to alter
the arrangements which it was free to make for the performance of its work
in order to reinstate the strikers.
Collective Baiganu ng: charges of refusal to bargain collectively, dismissed when :
(1) respondent was not bound to recognize the union while a question con-
cerning representation which Board found to have existed remained unre-
solved; (2) alleged failure to meet with the union to arrange for the rein-
statement of striking employees was justified as question concerning represen-
tation was still unresolved, under the circumstances such request could not
be considered as a request to bargain, and union made no other attempts to
communicate with the respondent at that time; and (3) respondent's refusal
to deal with the union following its certification was not a refusal to bargain
,collectively when because of business exigencies and not as a result of any
unfair labor practice, it had transferred the operations of its business involving
the employees concerned.
Practice and Procedure : complaint dismissed.
Mr. Lester 161. Levin and Mr. Allan R. Rosenberg, for the Board.
Mr. T. Justin Moore and Mr. Edmund M. Preston, of Richmond,
Va.; Mr. Harry S. Ferguson, of New York City ; and Mr. David A.
Harrison, Jr., of Hopewell, Va., for the respondent.
Mr. Herman Edelsberg and Mr. Alfred Kamen, of Washington,
D. C., for the Union.
Miss Grace McEldowney, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by L. U. #12103,
District No. 50, United Mine Workers of America, C. 1. 0., herein called
the Union, the National Labor Relations Board, herein called the
47 N. L. R. B , No 141.
1113
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board, by the Regional Director for the Fifth Region (Baltimore,
Maryland), issued its complaint dated April 2, 1941, against The
Solvay Process Company, Hopewell, Virginia, herein called the re-
spondent, alleging that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce, ,within the meaning
of Section 8 (1), (3), and (5) and,Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint, accompanied by notice of hearing, were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance : (1) that on or about March 13, June 3, and October 3,
1940, and on various dates thereafter, the respondent refused to bar-
gain collectively with the Union as the exclusive representative of its
employees in a unit appropriate for collective bargaining, although on
or about March 1,• 1940, and at all times thereafter, the Union was, and
on September 19, 1940, was certified by the Board as, the exclusive bar-
gaining agent of the employees of the respondent in such unit; (2) that
on or about March 8, 1940, a majority of the employees in said unit
went out on strike, and that on March 13, June 3, and October 3, 1940,
said strike was prolonged because of the respondent's unfair labor
practices; (3) that on or about June 3, 1940, the Union, on behalf of the
striking employees, applied to the respondent for their reinstatement,
but that the respondent refused to reinstate them, and thereby dis-
criminated in regard to their hire and tenure of employment for thee
purpose of discouraging membership in the Union; and (4) that by
the foregoing and,other acts the respondent interfered with, "restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. On April 22, 1941, the respondent filed its answer,
admitting the allegations of the complaint with respect to its business,
denying that it was or had ever been the employer of the employees
involved and that it had engaged in the unfair labor practices alleged;
and setting forth certain affirmative hatter by way of defense.
Pursuant to notice, a hearing was held at Hopewell, Vir- rinia, on
May 15 and 16, and from June 23 to 26, 1941, before R. N. Denham,' the
Trial Examiner duly designated by the Chief Trial Examiner. The
Board, the respondent, and the Union were represented by counsel and
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties.
On May 15, 1941, counsel for the Board moved to amend the com-
plaint,' and thereafter the Union filed a third. amended charge. On
May 16, 1941, counsel for the Board withdrew his motion to amend,
'The new allegations proposed in the motion to amend were in substance as' follows :
(1) that between February 17 and March 8, 1940, the respondent , by its officers and agents,
attempted to discourage certain of its employees , hereinafter called the Thompson em-
THE- SOLVAY PROCESS COMPANY 1115
pending further investigation of the allegations contained in the new
-charge, and the Trial Examiner recessed the hearing to permit such
investigation. On June 13, 1941, during the recess, the Union with-
drew the third amended charge, pursuant to permission granted by the
Regional Director, and on June 23, 1941, the hearing proceeded on the
basis of the original complaint.
At the beginning of the hearing the Trial Examiner, pursuant to
a stipulation of the parties, included as part of the record in the
present proceeding certain material from prior proceedings before
the Board and from proceedings before the Circuit Court of the city
of Hopewell.2 During the course of the hearing the respondent filed
with the Trial Examiner an application for a subpena daces tecum
requiring the Chief of the Benefit Section of the Unemployment
-Compensation Commission of the Commonwealth of Virginia to
appear and testify, and to bring with him records showing all sums
paid by employers between December 31, 1939, and April 1, 1941, to
,each individual on. a list appended to the application," the purpose
of the subpena, as stated in the application, being to obtain informa-
tion regarding the wages, salaries, or other compensation received by
the named individuals for work or services performed during the
specified period, and particularly after the beginning of the strike of
March 8, 1940. ' The Trial Examiner denied the application.4
ployees by statements , threats , and warnings , from becoming or remaining members of
the Union ; (2) that the respondent, by its officers and agents , on or about March 1, 1940,
laid off and thereafter refused to reinstate for several days nine named employees because
they wore union buttons and joined the Union ; and (3 ) that on or about March 8, 1940,
a majority of the employees in the appropriate unit went out on strike because of these
unfair labor practices and because of'the refusal of Thompson, the respondent 's agent and
employee , to deal with the Union
I The entire record, including exhibits , in Matter of Solvay Process Co. and Wm C B.
Thompson and District 50, United Mine Workers of America ( Case No R-1864 ), 26 N L. R B.
650, was included by reference , to be treated as if physically incorporated in the official
transcript of the present proceedings ; and designated portions of the records in Matter of
Sola,ay Process Company and Local 12103, Chemical Dec ision of District 50, United Mine
Workers of America, C. 1. C. (Case No . R-2159 ), 29 N. L R. B. 24, and in Solvay Process
Company, a corporation v. Thompson Division , Local Union 12103, Chemical Division of
.District No. 50, United Mine Workers of America, et at, an injunction proceeding in the
Circuit Court of the city of Hopewell , were physically incorporated in the transcript.
a Tbis list contained the names of the 522 so-called Thompson employees who appeared
on the pay rolls of March 6 , 7, and 8, 1940
In support of its application, the respondent relied on the decision of the Supreme
Court in Phelps Dodge Corp . v. National Labor Relations Board, 313 U. S. 177, holding that
deductions from back -pay awards should be made both for actual earnings by the workers
involved, and for' losses wilfully incurred by them In view' of the fact that the Board's
customary back -pay order provides for the deduction of net earnings during the period for
which back pay is awarded , and that evidence of such earnings offered at the time of the
hearing would necessarily be incomplete and inconclusive , we are convinced that the
respondent was not prejudiced by the ruling of the Trial Examiner insofar as the ques-
tion of the earnings of the strikers is concerned Furthermore , although the Supreme
Court also held in the Phelps Dodge case, cited above, that an employer should be allowed
to go to proof on the issue of losses wilfully incurred , in the instant case the respondent
made no showing that the records called for--would furnish information material or
relevant to this issue. In the absence of such showing , we believe that the Trial Examiner
was justified in refusing to issue the subpena requested by the respondent.
1116 DECISIONS OF NATIONAL LABOR` RELATIONS BOARD
At the close of the respondent's case, counsel for the respondent
moved that -the proceedings be kept open pending a decision by the-
Board as to whether or not the questions of other earnings, other-
employment, refusal to accept employment, and wilful termination of
employment were in issue, and a definition by the Board of the unit
of employees subject to reinstatement and back pay. The motion was.
denied by the Trial Examiner. Counsel for the Board also moved
at this time to conform the pleadings to the proof on such minor-
matters as dates and the correct spelling of names. The Trial Exam-
iner allowed the amendment over the objection of respondent. During-
the hearing the Trial Examiner also made rulings on other motions.
and on objections to the admission of evidence. , The Board has re-
viewed all the rulings of the Trial Examiner and finds that no-
prejudicial errors were committed. The rulings are hereby affirmed.'-
At the close of the hearing, opportunity was afforded the parties,
for oral argument before the Trial Examiner. The respondent and
counsel for the Board agreed to the submission of briefs in lieu of such-
oral argument.. Pursuant to this agreement, the respondent, the
Union,6 and counsel for the Board submitted briefs to the Trial Exam-
iner which have been considered by the Board.
During the course of the hearing the respondent made several-
motions to dismiss the complaint, in its entirety and insofar as it re-
lated to every former Thompson employee who had not taken the
stand to testify on the questions of other earnings, other employment,-
refusal to accept employment, or wilful termination of employment..
The Trial Examiner reserved ruling on these motions. On July 31,.
1941, after the close of the hearing, the respondent filed with the
.Chief Trial Examiner a motion to dismiss the complaint, on the
grounds that the employees involved were not and never had been
employees of the respondent and that there was no evidence that the-
respondent had committed any unfair labor practice within the mean-
ing of the Act. These motions to dismiss are hereby granted for the
reasons appearing hereinafter.
On July 31, 1941, the Board, acting pursuant to Article II, Sections
-36 and 37, of National Labor Relations Board Rules and Regulations-
Series 2, as amended, ordered that the proceeding be transferred to•
and continued before it; that no Intermediate Report be issued by the
Trial Examiner; and that Proposed Findings of Fact, Proposed Con-
clusions of Law, and Proposed Order be issued.
5 On October 14,' 1941, the Union filed a motion td include in the record herein certain
additional material from the record in Solvay Process Company, a corporation v Thompson
Division, Local Union 12103, Chemical Division of District 50, United Mine Workers of
America, et al. The respondent has stated that it does not object . The motion is granted,
and such material , consisting of statements of counsel , is hereby made a part of the record
in the present proceeding.
6 Counsel for the Union was not - present at the time of the agreement ; but was notified
thereof. '
THE SOLVAY PROCESS COMPANY 1117
On March 31, 1942, the Board issued and served upon the parties
its Proposed Findings of Fact, Proposed Conclusions of Law, and
Proposed Order. Thereafter the respondent filed exceptions to the
Proposed Findings, and a brief and supplemental brief in support
of the exceptions. _
Pursuant to notice, a hearing for ,the purpose of oral argument was
held before the Board in Washington, D. C., on May 28, 1942. The
respondent and the Union were represented by counsel and participated
in the argument.
The Board has considered the exceptions and briefs filed by the re-
spondent, and hereby sustains the exceptions insofar as they are con-
sistent with the findings, conclusions, and order set forth below. °
Upon the entire record in the ,case, the Board makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Solvay Process Company, an affiliate of Allied Chemical & Dye
Corporation, is a New York corporation engaged in the manufacture
and sale of chemical products. At its plant at Hopewell, Virginia, it
manufactures nitrogenous and other products, including nitrate of
soda, nitrogen solutions, and chlorine. The raw materials used in its
manufacturing operations are soda ash, coke, and air. Approximately
75 percent of the tonnage produced at the plant is shipped out of the
State, and all the soda ash and approximately 75 percent of the coke
used as raw materials are shipped to the plant from outside Virginia.7
The Company admits that it is engaged in commerce, within the mean-
ing of the Act.
H. THE ORGANIZATION INVOLVED
L. U. #12103, District No. 50, United Mine Workers of America,
is a labor organization which admits to membership employees working
at the Hopewell plant of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The events giving rise to the issues
Prior to March 8, 1940, the work of the respondent at its Hopewell
plant was carried on by 2 groups of employees. The first group, herein
called the Solvay employees, was composed of employees carried on
the pay roll of the respondent; the second group, herein called the
4 The above facts are based on the findings of the Board in Matter of Solvay Process Co.
and Win U B Thompson and -District No. '50, United Mine Workers of America, 20
N L R B 650 , pursuant to a stipulation of the parties herein that the operations of the
Company are substantially similar at the present time to those therein found , with the
possible exception of an increased amount of production at present.
I
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thompson employees's was composed of common laborers, longshore-
men, and stevedores carried on the payroll of William G. B. Thomp-
son,9 alleged by the respondent to be'an'independent contractor. The,
number of Thompson employees working on any one day varied from
40 or 50 to 400 or more.
In 1937 or 1938 the Union 10 began to organize the Solvay employees,
and in 1940 it extended its activities to include the Thompson em=
ployees, establishing for the latter a separate division of the Union
known as the Thompson Division of Solvay Local 12103. On Feb-
ruary 29,1940, representatives of the Union met with Thompson to dis-,
cuss certain instances of alleged discrimination against its members.
At that time Roy Lancaster, one of'tlie union representatives, told
Thompson that a majority of -his employees were members of the
Union, and on the following day he requested a conference with
Thompson to discuss a collective bargaining contract. This request
was confirmed by a letter dated March 1, 1940, to, which Thompson
made no reply until March 7, 1940.
On March 5, Lancaster asked, Thompson to allow his employees to
attend a union meeting at 7: 30 that night and go to work later.
Thompson replied that unless they reported for work as usual at
7 o'clock there would be no work. None of the men reported, and
by the time the meeting was over Thompson had closed his office
and gone home. At the union meeting, attended by approximately
600 Thompson employees, authority was given to the executive com-'
mittee to take whatever action was necessary to secure recognition.
On March 7, Thompson 'made the following reply to Lancaster's
request for recognition :
Your letter bearing date March 1 reached my office on Satur-
day afternoon, March 2. You request me to recognize the C. I. O.
as exclusive bargaining agent for my employees except super-
visory and clerical employees. I have no way of knowing or of
myself determining whether you are entitled to such recognition,
but it is my understanding that when a question as to represen-
tation arises the Labor Board is the proper one to determine it.
Under these circumstances it would seem to me that the most
orderly procedure would be to ask the Labor Board to determine
the question. From my own standpoint, I intend to comply with
the law in this as in other matters.
8 As appears hereinafter , the Board has previously found the respondent to be the
employer of these employees.
9 Also referred to in the record as Wm. G. B. Thompson and W. G . B. Thompson.
10 Both District 50, United Mine Workers of America, and its affiliated local, L. U.
# 12103 , are hereinafter referred to as the Union.
THE SOLVAY PROCESS COMPANY 1119
The Union then suggested a consent election to be conducted by
the Board, but Thompson would not agree ." The Union, for its part,
was unwilling to file a representation petition with the Board.
As a result of this situation , and pursuant to a unanimous vote
of the . Union's executive committee , a strike of the Thompson em-
ployees was called at 5 o'clock on March 8, 1940, and picket lines were
established . The Thompson employees who were at work left the
plant,12 and those who were supposed to go to work on the night
shift did not report for work. Lancaster told Thompson that there
would, be no work until he recognized the Union . The next morning
again no one answered the call for work, and within a few days
union seamen , acting in sympathy with the strikers , refused to
permit boats to land at the respondent's docks.
On March 8 or, 9, Lancaster telephoned to Thomas B. Morton,
Commissioner of Labor and Industry of the Commonwealth of Vir-
ginia, informing _him of the situation and asking his assistance in
settling the dispute. Lancaster suggested that to accomplish this it
might be necessary to get in touch with the respondent. Pursuant
to the Union's request , Morton went to Hopewell on March 9 or 10
and conferred with union officials and later with Thompson and his
attorney , by whom he was informed that Thompson would be obliged
to stand on the statement made in his letter of March 7 . The same
position was maintained by Thompson in a conference with a repre-
sentative of the Maritime Labor Board, whose assistance had also
been requested by the Union.
. At Lancaster 's suggestion , Morton also saw J . J. O'Leary, the
respondent 's manager of production , in an attempt to settle the
dispute. In this and subsequent conversations , O'Leary took the
position that he could not deal with Morton because the strikers were
not the respondent 's employees.
On March 13 , 1940, Thompson , in person and by letter, notified the
respondent that he was canceling his contracts with the respondent,
and on the same day he posted a notice informing his employees of
his decision . The respondent made no attempt to dissuade him.13
11 Thompson 's reason for refusing to agree to a consent election , as expressed at the
hearing in the subsequent representation proceeding, was as follows
I myself . . . had no' means of knowing who they were , my employees, how
many did I have, how constant they were , did they constantly come and go , and if I
agreed with Mr. Lancaster, whom was he going to represent . The thing I wished
to have determined , I assure you , was, by the Labor Board of the United States
Government, the fact that these men finally were my employees and that I should
recognize them as such.
12 On March 8 there were approximately 474 Thompson employees working in the plant.
13 The complaint does not allege that any of the foregoing facts constitute unfair labor
practices on the part of the respondent. Although the respondent and Thompson were
both named as employers in the original charge , Thompson , who had gone out of business,
was not named as a respondent in the complaint.
1120 DECISIONS OF NATIONAL LABOR '' RELATIONS BOARD
On the same day, March 13, Lancaster sent the respondent the fol-
lowing letter :
Please be advised that our Committee and Representatives are
available to meet with you at any time you desire to discuss a set-
tlement of the strike of dockhands and laborers at your plant.
The respondent did not reply to this letter, and the strike continued.
On or about March 18, 1940, the respondent entered into short-term
contracts , renewed from time to time thereafter , for the performance
by new contractors of the work previously handled through Thomp-
son. Within 20 or 25 days full production was reached , but shipping
operations were not resumed . at the respondent 's docks until the
following October.
During this time, the strike and mass picketing continued , accom-
panied by some disorder and occasional instances of violence, as a
result of which the respondent instituted proceedings in the Circuit
Court of the city of Hopewell to enjoin strike activities . A temporary
injunction , limiting the number of pickets , was granted on March 19,
1940, and was later extended and made permanent . Thereafter the
mass picketing ceased, but the strikers attempted in various ways to
dissuade the employees of the new contractors from working in the
plant.
On April 12, 1940, the Union filed with the Board a petition for in-
vestigation and certification of representatives, naming both Thomp-
son and the respondent herein as employers of the employees involved.
On May 3, 1940, the Board issued its order authorizing an investiga-
tion, and a hearing before a Trial Examiner was held from May 12 to
29' 1940. The strike continued during the hearing, but on May 31,
1940, Lancaster sent the following letter to the respondent' and to
Thompson :
I am authorized by Local Union 12103 of District 50, United
Mine Workers of America to inform you that it is prepared forth-
with to terminate the strike of the laborers and dockhands and to
return the strikers to their former jobs.
We are prepared to meet with you at your convenience to make
such arrangements for reinstatement as may be necessary.
The letter was received by the respondent on June 3, 1940. Neither
Thompson nor the respondent replied, and-the strike continued.
On August 15, 1940, the Board issued its decision in the representa-
tion proceeding,14 in which it found that the respondent was the em-
ployer, within the meaning of the Act, of,the employees who had been
engaged in the performance of work under the agreements between the
respondent and Thompson , and that all such employees , including
laborers employed in and around the respondent 's plant and longshore=
14 26 N. L It B. 650.
THE SOLVAY PROCESS COMPANY 1121
men and stevedores working on its docks, but excluding clerical_ and
supervisory employees, constituted a unit appropriate for the purposes
of collective bargaining. The Board also directed that an election be
held among all employees in the unit whose names appeared on any of
Thompson's pay rolls from January .1, 1940, through March 12, 1940,
excluding employees who had quit or had.been discharged for cause
after January 1, 1940. The election was held on August 30, 1940. The
Union won by a vote of 421 to 2, and was certified by the Board on
September 19, 194015
On September 30, 1940, the Union wrote the following letter to the
respondent:
In accordance with the decision of the National Labor Relations
Board, which, upon September 19th, 1940, certified District 50,
United Mine Workers-of America as the bargaining agency for the
Laborers and Dockworkers Local Union 12103 B, %^e would like
to have you inform us at your earliest convenience, of a time and
place suitable to you, to start discussions of a working agreement.
On October 3 the respondent's reply was read to the union committee.
In this statement the respondent expressed its unwillingness to bargain
collectively with the Union, giving the following reasons for its
position :
We base our unwillingness squarely upon the grounds that as
matter of fact and law the individuals comprising the unit found
by the Board to be appropriate for purposes of collective bargain
ing are not employees of the Company; the unit is not an appropri-
ate unit for the purposes of collective bargaining with the Coln-
-pany, and the Board's decision and direction of election of August
15, 1940 and subsequent proceeding and certification are in error.
Thereafter the strike continued, according to Lancaster, but picket-
ing ceased early in 1941. At the time of the hearing herein, the re-
spondent had eliminated "certain jobs by improved methods of opera-
tion, but otherwise had continued the policy, adopted in March 1940,
of making short-term contracts for the performance of the work which
was formerly done by the Thompson employees.
B. Conclusions as to the alleged refusal to bargain collectively
As stated above, on March 13, 1940, the Union wrote to the respond-
ent, advising it that the "committee and representatives" of the Union
were available at any time for a meeting to "discuss a settlement of the
strike of dockhands and laborers at your [the respondent's] plant."
The respondent took the position that the employees involved were not
1
27 N. L. R. B. 328.
513024-43-vol. 47-71
1122 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
its employees and made no reply to this letter. We do not infer, how-
ever, that in so doing the respondent repudiated the position previously
taken by Thompson that doubt existed as to the Union's majority
status. Nor do we believe that this question concerning representation
had been conclusively settled by the strike of March 8. The evidence
of violence on the picket line and the absence of any real attempt on
Thompson's part to resume operations create some doubt as to whether
a• majority of the employees voluntarily participated in the strike and
thereby indicated their designation of the Union as their collective
bargaining representative. The'Union had available to it, as Thomp-
son suggested, the procedure provided by the Act for a determination
of the question by the Board. ' This procedure the Union at that time
chose not to use. Later, when the Union filed a petition;.we found that
a question concerning representation existed. Until this question was
resolved, the respondent's refusal to recognize and deal with the Union
was not a refusal to bargain collectively within the meaning of the
Act.
The complaint also alleges that on June 3, 1940, the respondent re-
fused to bargain collectively with the Union, but we find no basis in the
record to support this allegation. The question concerning representa-
tion was still undecided. Furthermore, the unequivocal statement in
the Union's letter of May 31, 1940, received by the respondent on June
3, that it was "prepared forthwith to terminate the strike," makes
unreasonable an interpretation of the further statement, that it was
`.prepared to meet with you [the respondent] ' at your convenience to
make such arrangements for reinstatement as may be necessary," as a:
request to bargain. Nor is there any, evidence of other attempts on the
part of the Union to communicate with the respondent at' this time.
On September 30, 1940, following the Board's certification of the
Union as the exclusive representative of the Thompson employees, the
Union again requested a bargaining conference. The respondent again
refused. By this time, however, the respondent, by the contracts made
by it on and after March 18, 1940, had in effect given up that part
of its operations previously handled through Thompson and had
turned it over to the independent contractors with whom the contracts
were made. As we have pointed out above, the complaint does not
allege that the cancelation of the Thompson contracts constituted an
unfair labor practice; and there is no basis in the present record for
believing that either the cancelation of the Thompson contracts or
the respondent's subsequent transfer to independent contractors of that
part of its business previously handled through Thompson was due to
anything other than the exigencies of the respondent's business. Un-
der the circumstances,' we find-that the respondent's refusal to .deal
with the Union in response to its request of September 30, 1940,: was
not a refusal to bargain collectively, within •the-meaning of the Act.
-_4'HE.'SOLV"AY PROCESS COMPANY 1123
On the basis of the facts stated above and the entire record in the
case, we find that the respondent did not, on or about March 13, June 3,
and October 3, 1940, refuse to bargain collectively with the Union as
the exclusive representative of its employees in an appropriate unit,
within the meaning of Section 8 (5) of the Act.
C. The alleged- discrimination with respect to hire and tenure of,
employment
The complaint alleges that the respondent-discriminated in regard
to the hire and tenure of employment of its striking employees by
refusing to reinstate them on or about June 3, 1940, when the Union,
on behalf of the strikers, applied for their reinstatement. The appli-
cation was contained in the Unions letter, discussed above, offering
"forthwith to terminate the strike of the laborers and dockhands and
'to return the strikers to their former jobs." To this letter,the respond-
ent made no reply.
By this time, however, the work previously done by the Thompson
employees, with the exception of certain jobs which had been elimi-
nated in the interest of efficiency, was being done under new contracts,
and there were no positions available for the strikers. Since the strike
had not been caused or prolonged by unfair labor practices, the re-
spondent was free to make appropriate arrangements J or the per-
formance of its work; it was under no duty to alter these arrangements
in' order to 'reinstate the strikers.16
We therefore find that the respondent did not, on or about June 3,
1940, discriminate in regard to the hire and tenure of employment of
the striking employees.
Since we have found that the respondent did not engage in the
-unfair labor practices, alleged in the complaint, we shall dismiss ,the
complaint in its entirety.
Upon the basis of the foregoing findings of fact and upon the. entire
record in the case, the Board makes the following :
CONCLUSIONS.OF LAw
1: The operations of the respondent, The Solvay Process Company,
Hopewell, Virginia, occur in commerce, within the meaning of Section
2 (6).of the Act.
2.'L. U. #12103, District No. 50, United Mine Workers of America,
,C. I. O.; is a labor organization, within the meaning of Section 2 (5)
of the Act.
'ON L.'R B. 'i Mackay Radio & Telegraph Col, 304 U. S 333, reversing 92 F. (2d) 761
and 87 F. (2d) 611 (C C. A. 9) and affirming Matter of Mackay Radio & Telegraph Corti-'
pang, a corporation and American Radio Telegraphists ' Association, San Francisco Local
No. 8, 1 N. L. R. B. 201.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The respondent has not engaged in unfair labor practices as
alleged in the complaint, within the meaning of Section 8 (1), (3),,
and (5) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint against the respondent, The
Solvay Process Company, Hopewell, Virginia, be, and it hereby is,
dismissed.
CHAIRMAN MILLIS dissenting : '
On March 13, 1940, when the Union wrote to the respondent request-
ing a bargaining conference , the respondent made no reply; in its
subsequent conferences with Morton and other conciliators , the re-
spondent expressed no reason for its unwillingness to bargain except
that it was not the employer of the employees involved . The respond-
ent now contends that, if it was the employer of the Thompson
employees , as the Board has already found ,19 Thompson's expressed
doubt as to the Union 's right to recognition must be regarded as having
been expressed for the respondent as Well as for Thompson . Assuming
this, I do not believe that the respondent was thereby relieved from
recognizing and bargaining .with the Union.
In his letter of March 7, 1940, Thompson had raised no specific
objection to the unit proposed by the Union 20 Since the 'unit suggested
by the Union was the conventional unit, more than a general disclaimer
of knowledge as to the Union's right to recognition was required to
indicate doubt as to the appropriateness of the suggested grouping of
employees .'-•' Thompson 's letter of ` March 7' can, in my opinion, be
regarded as apprising the Union only of a doubt as to its majority
status.
As between the Union and the respondent , however , any question of
majority had, by March 13, been answered by the unanimous participa-
tion of the Thompson employees in the strike21 Since the record con-
tains no evidence of violence on the part of the Union or any of its
19 26 N. L. R. B. 650. -
29 The Union had requested recognition "as the exclusive bargaining agent for all your
[Thompson 's] employees with the exception of supervisory and clerical employees." '
11 See Lebanon Steel Foundry v. N. L. R . B , 130 F ( 2d) 404 ( App. D. C ), enforcing
Matter of Lebanon Steel Foundry and • Steel Workers Organizing Committee , affiliated
with the C 1 0, 33 N L. R. B . 233, cert. denied 63 S Ct 58 , in which the Court said :
"The Wagner Act requires no specific form of authority to bargain collectively . . .
Authority may be given by action as well as in words . . . Not form, but. intent, is the
essential thing . . This intent has, been found from participating in a strike - vote taken
by the Union , a strike called by the Union , and acceptance of strike benefits. It is only
necessary that it be manifested • in some manner capable of proof; whether by behavior or
language." - --
a
THE' SOLVAY PROCESS COMPANY 1125
members prior to or 'on the day of the strike, and shows only one or
two isolated instances,of misconduct from then until after March 13,
there seems no reason to doubt the voluntary nature of the strike or to
assume that the Union's majority was vitiated between March 8 and
March 13 by improper strike activity. -
It therefore appears that on March 13, 1940, the respondent, in
refusing to bargain with the Union, was relying solely on its position,
expressed in conferences with Morton and other conciliators, that it
was not the employer of the Thompson employees. Assuming that this
contention was made in good faith, I do not believe, nor has the
majority found, that the respondent was thereby excused from its
obligation to bargain. Employee status may at times be an element
in the determination of the appropriate unit, as in cases in which a
petitioning union seeks to include in a bargaining unit some individ-
uals who are not employees of the employer involved. But where, as
here, the employee status of all the individuals in the proposed unit
is denied and the facts giving rise to the employer-employee relation-
ship are peculiarly within the knowledge of the respondent, only a
jurisdictional question is raised, and there is no reason for deferring
the obligation to bargain pending an adjudication of the question by
the Board.22 I am therefore of the opinion that the respondent, on or
about March 13, 1940, refused to bargain with the Union, as alleged
in the complaint.
Although the complaint alleges that the respondent also refused to
bargain on or about June 3, 1940, there is no basis for finding that the
Union requested bargaining at that time. Its letter of May 31, 1940,
to the respondent was an unconditional offer to terminate the strike,
rather than a.request for a bargaining conference. I therefore agree
with the majority that the respondent's failure to reply to that letter
was not a refusal to bargain collectively, within the meaning 'of the
Act. :
However, on September 30, 1940, following the Board's decision
holding that the Thompson employees were employees of the respond-
ent and constituted an appropriate bargaining unit 23 and the Board's
certification of, the Union as the duly designated bargaining repre-
sentative,24 the Union again requested a bargaining conference, and
the respondent again refused. It is true that by this time the re-
spondent had entered into contracts under which the work, previously
done by the Thompson employees was being performed by employees
22 Cf Matter of Robert S. Green, Incorporated and United Construction Workers Organiz-
ing Committee, 33 N. L R B 1184, enf'd N. L R. B. v. Robert S Green, Incoiporated,
125 F. (2d) 485 (C C. A. 4), and Matter of Joseph R. Gregory, an individual and United
Transport Workers Industrial Union Local 806, affiliated with the C I. 0, 31 N. L. R. B.
71, enf'd N. L. R. B' v Gregory, December 2, 1941 (C. C A. 5), holding that a refusal to
bargain as not excused because of jurisdictional questions.
28 26 N. L. R. B. 650.
2127 N. L. R. B. 328.
1126 DECISIONS OF-UTATIONAL LABOR RELATIONS BOARD
of new contractors. I am not persuaded, however; that by so doing the
respondent gave up any part of its operations. The contention was
in effect rejected by the Board in the representation proceeding, where
we found that the Thompson employees had retained their status as
employees of the respondent, and I do not'find, nor does the majority
state, any reason to alter this conclusion because of the additional
evidence presented in the present proceeding. Furthermore, since the
strike of the Thompson employees was prolonged by reason of the
respondent's unfair labor practices on March 13, 1940, prior to the
replacement of the strikers, the respondent's relationship to its striking
employees and its duty to bargain with the Union as their representa-
tive were not affected by the change in operations. I would therefore
find that, on or about October 3, 1940) the respondent refused to bargain
collectively with the Union, within the meaning of the Act.
Under these circumstances, moreover, the strikers were entitled, in
the absence of some valid cause for discharge, to reinstatement to their
former positions upon application.25 The Union made such applica-
tion for the strikers on May 31, 1940, when it unconditionally offered
to terminate the strike and return the strikers to work. By its failure
to reply to the Union's letter of May 31, 1940, the respondent in effect
refused to reinstate the,strikers and thereby discriminated in regard
to their hire and tenure of employment, within.the meaning of Section
8 (3) of the Act.
I believe, therefore, that effectuation of the policies of the Act
requires, and I would order, that the respondent bargain collectively
with the Union as the exclusive representative of the employees in the
appropriate unit, and that the respondent reinstate its striking em-
ployees with back pay from June 3, 1940, the date on which the re-
spondent received the Union's application, for reinstatement of the
strikers.
25 Republic Steel Corp . v. N. L R . B., 311 U. S. 7, mod'g 107 F. ( 2d) 472 ( C. C. A. 3),
enf'g as mod . Matter of Republic Steel Corporation and Steel Workers Organizing Com-
niittee, 9 N. L. R. B. 219 ; Stewart Die Casting Corp. v. N. L. R. B., 114 F. (2d) 849
(C. C. A. 7), enf'g as mod Matter of Stewart The Casting Corporation and United Automobile
Workers of America, Local 298, et at, 14 N.' L. R B. 872, cert . denied 312 U. S. 680;
Black Diamond Steamship Corporation v. N L R. B, 94 F. ( 2d) 875 •(C. C. A. 2), enf'g
Matter of Black Diamond Steamship Corporation and Marine Engineers, Beneficial Associa-
tion, Local No. 33, 3 N. L. R. B. 84, cert . denied 304 U. S. 579; N. L R . B. v. Remington
Rand, Inc, 94 ' F. (2d) 862 (C. C A. 2), enf'g as mod Matter of Remington Rand, Inc.
and Remington Rand Joint Protective , Board of the District Council Office Equip-
ment Workers , 2 N. L R. B. 626 , cert. denied 304 U. S. 576 ; Jeffery-DeWitt Insulator
Co. v. N. L R. B, 91 F. ( 2d) 134 (C C. A._ 4 ), enf'g Matter of Jeffrey-De Witt
Insulator Company and Local No. 455, United Brick and Clay Workers of America, 1
N. L R B 618 ; cert denied 302 U . S. 731 ; The M. H. Ritzicoller Company, a corporation v.
N. L. R. B., 114 F ( 2d) 432 and 438, enf'g as mod Matter of The M. H.'Ritzwoller Com-
pany and Coopers International Union of North America, Local NO. 28, 15 N. L. R. B. 15 ;
Matter of Western Felt Works, a corporation and Tex-tile Workers Organizing Committee,
Western Felt Local, 10 N. L. R B 407; Matter of MoKaig-Hatch, Inc. and Amalgamated
Association of Iron, Steel and Tin Workers of North America, Local No.- 1139, 10
N. L. R. B. 33.