Allied Chemical and Dye Corp.

National Labor Relations Board - Board Decisions

May 21, 1952

99 N.L.R.B. 222 (N.L.R.B. 1952)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall direct an election by secret ballot to be held
among all junior engineers, assistant engineers, and engineer A's at
the Employer's plant in Washington, D. C., Maryland, and Virginia,
including cost engineers,9 commercial and governmental service e? igi-.
neers, engineering aides, survey crew, engineer-surveyor,1o but cxclud-
ing all other employees of the Employer and all supervisors as defined
in the Act 11 If the employees in the voting group do not select the
Union, the Union will be decertified as to them; if, on the other hand,
they select the Union, they will be taken to have indicated their de-
sire to be included with the nonprofessional employees in the over-
all unit now represented by the Union.
[Text of Direction of Election omitted from publication in this
volume.]
Y See footnote 5, supra, as to the junior cost engineers.
10 As the record contains insufficient evidence to determine whether this individual is a
supervisor, we shall permit him to vote subject to challenge.
" As the voting group described herein is larger than that sought by the Petitioner, the
Regional Director is authorized to permit the withdrawal of the, petition upon the timely
request of the Petitioner.
SEMET-SOLVAY DIVISION, ALLIED CHEMICAL AND DYE CORPORATION and
UNrrED GAS, COKE AND CHEMICAL WORKERS of AMERICA, CIO. Case
No. 9-CA.-415. May 21, 1952
Decision and Order
On November 14, 1951, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings made
by the Trial Examiner are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and brief,' and the
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Chairman Her4og and
Members Styles and Peterson].
2 The Respondent 's request for oral argument is hereby denied because the record and
the exceptions and brief, in our opinion, adequately present the issues and the positions of
the parties.
99 NLRB No. 48.
SEMET-SOLVAY DIVISION 223'
entire record in the case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations 3
Order
Upon the entire record in this 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, Semet-Solvay
Division, Allied Chemical and Dye Corporation, East Ashland, Ken-
tucky, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Gas, Coke and Chemical
Workers of America, CIO, or any other labor organization of its em-
ployees, by discriminating in regard to the hire and tenure of their
employment or any term or condition of employment.
(b) Interrogating its employees concerning United Gas, Coke and
Chemical Workers of America, CIO, or any other labor organization
of its employees.
(c) Warning its employees to have nothing to do with United Gas,
Coke and Chemical Workers of America, CIO, or any other labor
organization of its employees.
(d) Informing its employees that an employee has been discharged
because of his activities on behalf of United Gas, Coke and Chemi-
cal Workers of America, CIO, or any other labor organization of its
employees.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist United Gas, Coke and
Chemical Workers of America, CIO, or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to refrain from
any and all such activities, except to the extent that such right may,
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a)
(3) of the Act.
2. Take the following affirmative action which I find will effectu-
ate the policies of the Act :
:The Respondent excepts to the Trial Examiner 's statement in the Intermediate Report
that Allen did not testify that he discharged Fayne for sleeping on the fob or that he told
him that he was discharging him for sleeping on the job . Although Allen did not testify
in those precise terms , his testimony did establish that he discussed this with Fayne and
that during the discussion he told Fayne to "get your money." We correct the Interme-
diate Report accordingly . This correction does not, however , affect the validity of the
Trial Examiner 's findings and conclusions with respect to Fayne's discharge , nor our
concurrence therein.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer to Charles Fayne immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice to
his seniority and other rights and privileges previously enjoyed.
(b) Make whole Charles Fayne for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him,
in the manner set forth in the section of the Intermediate Report
entitled "The, Remedy."
(c) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary to analyze the amounts of
back pay due and the right of reinstatement under the terms of this
Order.
(d) Post at its plant at East Ashland, Kentucky, copies of the
notice attached to the Order herein and marked "Appendix A." 11
Copies of said notice, to be furnished by the Regional Director for the
Ninth Region, shall, after being signed by the Respondent's repre-
sentative, be posted by the Respondent and 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, and including the maintenance department. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Ninth Region, in writ-
ing, within ten (10) days f6m the date of this Order what steps
the Respondent has taken to comply therewith.
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
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist UNITED GAS, COKE AND
CHEMICAL WORKERS OF AMERICA, CIO, 'or any other labor organ-
ization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities except to the extent
4 In the event that this Order is enforced by a decree of the United States Court ofs
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
SEMET-SOLVAY DIVISION 225
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL NOT interrogate our employees concerning UNITED
GAS, COKE AND CHEMICAL WORKERS OF AMERICA, CIO, or any
other labor organization of our employees.
WE WILL NOT warn our employees to have nothing to do with
UNITED GAS, CORE AND CHEMICAL WORKERS OF AMERICA, CIO, or
any other labor organization of our employees.
WE WILL NOT inform our employees that any employee has been
discharged because of his activities on behalf Of UNITED GAS,
COKE AND CHEMICAL WORKERS or AMERICA, CIO, or any other
labor organization of our employees.
WE WILL NOT discourage membership in UNITED GAS, COKE AND
CHEMICAL WORKERS OF AMERICA, CIO, or any other labor organi-
zation of our employees, by discriminating in any manner with
regard to their hire and tenure of employment or any term or
condition of employment.
WE WILL offer to Charles Fayne immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority and other rights and privileges previ-
ously enjoyed.
WE WILL make whole Charles Fayne for any loss of pay suffered
by him by reason of the discrimination practiced against him in
accordance with the recommendations of the Intermediate Report.
All our employees are free to become , remain, or refrain from be-
coming members of the above-named union or any other labor organi-
zation except to the extent that this right may be affected by an agree-
ment in conformity with Section 8 (a) (3) of the amended Act.
SEMET-SOLVAY DIVISION, ALLIED
CHEMICAL AND DYE CORPORATION,
Employer.
By ------------------------------------
(Representative ) i(Title)
Dated --------------------
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
STATEMENT OF THE CASE
Upon a charge filed and served upon Respondent on May 7 , 1951, by United
'Gas, Coke and Chemical Workers of America, CIO, herein called the Union, the
General Counsel of the National Labor Relations Board, herein called , respec-
tively, the General Counsel and the Board , by the-'Regional- Director for the
-226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ninth Region (Cincinnati, Ohio), on July 24, 1951, issued his complaint against
Semet-Solvay Division, Allied Chemical and Dye Corporation, herein called Re-
spondent, alleging that Respondent had engaged in and was engaging in unfair-
labor practices affecting commerce within the meaning of Section 8 (a) (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act. Copies of the charge, complaint, and notice
of hearing were duly served upon the parties.
With respect to the unfair labor practices the complaint alleged in substance
that Respondent discharged one Charles Payne, an employee, on or about January
4, 1951, and since that date has refused to reinstate him because of his activities
on behalf of the Union ; that at all times after November 9, 1950, Respondent
has interfered with, restrained, and coerced its employees by threatening to
discharge and take other economic reprisals against them for the purpose of
discouraging membership and activity in the Union and by informing Charles
Fayne that he was discharged because of his membership in, sympathy for, and
activities on behalf of, the Union.
In Its answer filed August 2, 1951, Respondent admitted the commerce facts
alleged in the complaint, admitted that the Union is a labor organization, ad-
mitted that it discharged Charles Fayne on January 4, 1951, but denied the
commission of any unfair labor practices. The answer averred further that
Respondent discharged Charles Payne for sleeping on the job during working
hours.
Pursuant to notice a hearing was held in Ashland, Kentucky, from August 13
to August 16, 1951, before Alba B. Martin, the undersigned Trial Examiner.
The General Counsel and the Respondent were "represented by counsel and the
charging Union was represented by an acting subregional director. All parties
participated in the hearing and were afforded opportunity to be heard, to examine
and cross-examine witnesses , and to introduce evidence pertaining to the issues.
At the end of the hearing, the General Counsel's motion to conform the'pleadings
to the proof was granted . The General Counsel and Respondent filed briefs.
Upon the entire record in the case and from observation of the witnesses, I
make the following :
FINDINGS OF PACT
1. THE BUSINESS OF THE RESPONDENT
Semet-Solvay Division , Allied Chemical and Dye Corporation Is a New York
corporation engaged at its East Ashland, Kentucky , plant in the manufacture
of coke and byproducts . It has plants in several States but only the East Ash-
land , Kentucky , plant, sometimes referred to herein as the plant, is -involved
herein . East Ashland Is a suburb of Ashland , Kentucky . Respondent's annual
purchases of raw material for the East Ashland plant are in excess of $100,000,
more than 50 percent of which Is shipped to the East Ashland plant from points
outside the State of Kentucky . Its annual sales from the East Ashland plant
are In excess of $250,000, more than 50 percent of which is shipped from the East
Ashland plant to purchasers outside the State of Kentucky. At Its East Ashland
plant, Respondent employs approximately 290 employees. It is held that Re-
spondent is engaged in commerce within the meaning of the Act.
U. THE ORGANIZATION INVOLVED
United Gas, Coke and Chemical Workers of America, affiliated with the
Congress of Industrial Organizations, is a labor organization within the meaning
of Section 2 (5) of the Act.
SEMET-SOLVAY DIVISION 227
M. THE UNFAIR LABOR PRACTICES
A. Background
The Union began efforts to organize the employees of the East Ashland plant
on about October 1, 1950. Its representatives visited the employees at their
homes, and in addition Charles' Fayne, later the subject of the alleged dis-
criminatory discharge, and other employees spoke to the employees and had
them sign union cards at the plant. Fayne signed up between 50 and 60 em-
ployees himself, more than any other employee, and in addition received cards
from others who were assisting in the organizing efforts and transmitted them
to the union representatives. At a Board-conducted election conducted February
15, 1951,' out of approximately 257 eligible voters 125 votes were cast for the
Union , 120 against the Union, and 7 were cast under challenge. It thus appears
that nearly all of those eligible exercised their right of franchise. There was
testimony that it was well known throughout the plant that efforts were being
made to organize the employees, and it is reasonable to believe that this was so
during the organizing and preelection periods.
B. Interference, restraint, and coercion
Just before noon one day late in November 1950, outside the carpenter shop,
according to Charles Fayne's credible and credited testimony, Galen Kinley, the
assistant master mechanic, called Payne aside with the words, "Come here a
minute, I want to see you," and said, "I hear you have been getting some union
cards signed. . . . If I was you I would keep my nose out of it, and have
nothing to do with it...." Fayne asked how Kinley knew that he was getting
union cards signed and Kinley replied, "Well, it come to me pretty straight
you are . . . ."
Claude Harris, who impressed me as a credible witness and one able to dis-
tinguish what he remembered from what he did not, testified in effect that he
overheard part of the above conversation, that he heard Kinley say "something
about keeping his nose clean, or keeping his nose out of this, or something like
that . . . ." Harris added that he wasn't certain that Kinley used the word
"union" although he thought he did.
Galen Kinley denied the remarks attributed to him by Payne and Claude
Harris , although, given an opportunity, he did not deny having a conversation
with Fayne outside the carpenter shop in late November-stating that he talked
with Fayne "all over the place. I wouldn't attempt to fix a specific spot on a
specific day in November."
Fayne impressed me as a straightforward, honest witness whose memory was
good concerning the subject matter of his testimony and whose ability to express
himself was at least adequate. This conclusion is based upon his demeanor
While on the witness stand testifying, the immediacy and directness of his
answers, and his apparent ease during cross- as well, as direct examination.
Kinley did not impress me as a credible witness. On cross-examination his
demeanor indicated more strain and his manner of speaking more measured de-
liberation than would be expected from one of his general bearing and intelli-
gence. Persuasive also in this connection is certain testimony of Kinley to
which no credence can be given in the light of the entire record. He admitted
that there was considerable discussion about the Union, pro and con, during the
last 3 months of 1950, a fact which the record amply establishes; and Payne's
very active part in organizing the employees is undenied. Kinley testified that
I In Case No. 9-RC-1056.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during these same 3 months Fayne was frequently absent from his place of work
and would be found somewhere on the plant property talking with other em-
ployees. Yet, according to his testimony, Kinley had no thoughts as to whether
Fayne was talking to the other employees about the Union ; his mind made no
correlation whatsoever between Fayne's talking to other employees and the dis-
cussions then going on concerning the Union. To this testimony no credence
can be given.
There are other reasons, separate from the above credibility findings, which
lend credence to Fayne's and Claude Harris' testimony. Kinley admitted dis-
cussing the Union with many employees in the maintenance department during
the preelection period and before that. It is reasonable to believe, and it is
probable, that under these circumstances, word of Fayne's very active part in
the union drive reached Kinley's ears. Kinley testified in substance that
although he spoke to many employees about the Union he confined his remarks
to a statement of the advantages offered by the Company, such as its retirement
plan, insurance plan, hospitalization and surgical plans, but in no way suggested
that if the Union came in those advantages would be lost, and in no way indicated
to the employees what he thought about the Union or his opinion as to what
position they should take concerning it. Kinley's discussions with the employees
did not take place in a vacuum. They occurred during a period when the
employees were attempting to decide whether to favor or disfavor a specific
union. I find it impossible to believe that under these circumstances Kinley
would have failed to indicate his own views concerning the Union, regardless
of the language he used. And I find it difficult to understand how Kinsey ex-
pected to assist the employees in the resolution of their dilemma by telling them
what they already had, which they already knew, and making no reference to
what they would have or have not if the situation changed.
I find that in late November 1950, Kinley called Fayne aside, told him that he
had heard Fayne was getting some union cards signed , told him to keep his nose
out of it and have nothing to do with it ; and that it had come to him pretty
straight that Fayne was having union cards signed.
The question remains as to whether Kinley's statements to Fayne were a viola-
tion of the Act. It is held that they were. Kinley was Fayne's supervisor and the
assistant head of the department in which Fayne worked. The conversation out-
side the carpenter shop was initiated by Kinley after the latter had called Fayne
aside, and the subject of the Union was initiated by Kinley. Thus all the indi-
cations to Fayne were not that Kinley was offering uninvited advice, but that he
had something to say as Fayne 's superior. Under these circumstances Kinley's
remarks were not within the realm of free speech protected by Section 8 (c)
of the Act. Rather they were threats to Fayne that he had better give up his
activities on behalf of the Union or suffer any consequences that might follow.
I find that Kinley's remarks constituted interference, restraint, and coercion of
Respondent's employees in the exercise of the rights guaranteed in Section 7 of
the'Act, in violation of Section 8 (a) (1) of the Act.
On January 6 or 7, 1951, according to Fayne's credited testimony, 2 or 3 days
after his discharge on January 4, Fayne called at Kinley's home in Ironton,
Ohio, and asked Kinley to help him get his job back. Kinley replied that if
Fayne had listened to what Finley had told him that other day about the Union,
he would still be working for Respondent-an obvious reference to the conversa-
tion outside the carpenter shop in late November. Kinley denied this testimony
although he admitted there was a conversation at his home. on this occasion.
This denial is not credited. It is held that on January 6 or 7, 1951, Kinley told
Fayne, in effect, that he had been discharged because of his union allegiance and
SEMET-SOLVAY DIVISION 229
activities, and that by this statement Respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act, and thereby has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
Buster James Stergeon, a laborer in the labor gang, testified credibly that
his foreman , Monroe Chandler (who was stipulated to be a supervisor within
the meaning of the Act) three times during December 1950 engaged him in con-
`ersation about the Union. The first took place in a truck. Chandler asked
Stergeon what he thought about the Union and•Stergeon replied that he "thought
it would go over." In the second, which took place about a week later in the
oil house , Chandler again asked Stergeon what he thought about the Union and
Stergeon replied that he thought the same as he had previously. Chandler re-
plied that he did not see why Stergeon felt that way, because "there is some
against it was for it the other time." In the third conversation, which took
place 3 or 4 days later in a truck as they were riding to the brick shed, Chandler
said, "Your buddy, Payne, I know be signed up eleven men yesterday."
Monroe Chandler denied Stergeon's testimony completely and then testified
that he had two conversations with Stergeon concerning the Union, the first
in late November and the second in January 1951. In the first, as they were
riding in a truck on company property, Stergeon
raised the subject of, that he thought the working conditions in the plant
would be better if they could get the Union organized in the plant; and I
wasn't very much interested in it, in what he was talking about, I never
said anything in reply ; and so we goes around to the elevator door, which
is in the center of the block, where the brick was to be unloaded. Buster
was still giving his good points of the Union, and I said, "Well, Buster,
you might not get everything that you hope for if the Union does win, come in.
Chandler testified that he himself initiated the second conversation after he
had received at the gate a leaflet saying the Board would conduct an election,
and that he asked Stergeon, "What do you think about the election?" Stergeon
replied, "I think they're going over. I think the Union will go over." Chandler
said nothing more. Chandler testified further that during November and De-
cember, when he had about eight employees working for him (and when, as
found above, the pros and cons of union organization was a popular subject
of discussion throughout the plant), it was not possible that he had more than
the two conversations he referred to with Stergeon about the Union ; and that
(although his work took him throughout the plant) he had conversations about
the Union with no other employees than Stergeon, and he was completely un-
informed as to what the employees were talking about during that period.
Later in his testimony Chandler testified that during his first conversation
with Stergeon about 2 or 3 minutes elapsed, during which Stergeon did all of
the talking, saying that if the Union could get organized it could improve work-
ing conditions but making no specific points on or elaborating on how such con-
ditions could be improved. Chandler added that when after Stergeon had
talked for these 2 or 3 minutes Chandler replied that if the Union did come in
the employees might not get everything they hoped for, the statement was made
not with reference to any points Stergeon had made or any benefits Stergeon had
claimed could accrue to the employees, but "was made just to my own conclu-
sions. He hadn't represented any points at all."
Chandler testified further that even though in late November he had not
raised the subject of the Union with Stergeon, he did so in January, that he
did so in January, not because he was then any more or any less interested in
315233-53-16
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union or the election then than he had been in November , but "just through
curiosity 's sake." In January he spoke only to Stergeon about the election, not
to any other employee, and he spoke to Stergeon because "I just happehpd to
think about the leaflet and Buster and I were together at the time when it
came on my mind . That's why I asked him ." Chandler didn't know exactly
when the leaflet had come out-possibly the day he spoke to Stergeon, and
"maybe two or three days before that. " During the intervening time he had
spoken to no other employees about the leaflet or the election . He spoke to
Stergeon about it just after the matter of the election had flashed across his
mind. After Stergeon had replied that he thought the Union would go over,
Chandler not only made no reply but, if his testimony is to be believed, he had
no thought and no opinion on the subject . Chandler testified further that dur-
ing November and December 1950 he spoke to no other supervisors or foremen
about the Union.
In the light of its self-contradictions and improbabilities I am unable to credit
the testimony of Monroe Chandler . Having first said that Stergeon gave the
good points of the Union , he later stated that Stergeon had made no points at
all. It is highly improbable that after Stergeon had been talking for several
minutes Chandler's reply was not related to the specific points Stergeon had
been making but "was made just to my own conclusions ." If Chandler raised
the subject of the election in January "just through curiosity's sake" I find it
difficult to understand how his curiosity was satisfied by raising the subject with
only one employee when that would not have afforded even a spot check of
employee sentiment. I find it completely unbelievable that if Chandler had
enough curiosity to ask for Stergeon 's opinion he would not have had some mental
reaction, pro or con, to Stergeon's reply. Nor can it be believed that during
the organizing period Chandler spoke to no other supervisors about the Union.
Stergeon 'was on the witness stand but a few minutes , answered a few ^ ques-
tions , and was not cross-examined . Although he expressed himself in a few
words, there was nothing in his appearance on the witness stand to cast a doubt
upon his credibility. His testimony is credited.
It is held that by Chandler's interrogating Stergeon twice during December
1950 concerning his thoughts about the Union, Respondent interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8 (a) (1) of the Act'
C. The discharge of Charles Fayne
1. Background information
(a) Charles Fayne was discharged on January 4, 1951, a cold day which fell
in the coldest winter in. East Ashland's recent history. One witnesS=testifled
that sometime during that winter the tem f ierature readied 5 degiees'below iero,
and all the witnesses who testified on the subject agreed to the severity of the
weather. Respondent's plant consisted of a number of buildings and open
metal-frame structures with roofs located in different parts of an area approxi-
mately 1 mile long and one -quarter mile wide. Such an open structure exposed
to the weather was the coke handler. In order to provide warming spots for
those employees who worked out of doors , Respondent maintained a number of
stoves at different places around the plant , including the one at the coke handler'
2 Cf Standard -Coosa-Thatcher Company, 85 NLRB 1358 ; Empire Pencil Company, 85
NLRB 1358 ; Empire , Pencil Company, Division of Hassenfeld Bros ., Inc., 86 NLRB 1187.
-' Although there were two at the coke handler only the one is involved herein.
-SEMET-SOLVAY DIVISION 231
where Charles Fayne was warming just before his discharge on January 4.
Employees,,were free to- warm themselves whenever they felt the need and did
so'at ' iiitervals throughout their, working hours. Insofar as the record shows,
no advantage was taken or accused of being taken of this privilege. At the stove
herein involved there was a bench.
(b) Respondent's maintenance department, in which Fayne worked, consisted
of approximately 70 to 80 employees and was under the supervision of John
Allen, the master mechanic, Galen Kinley, assistant master mechanic, and
Lowell Cordial, chief electrician, who were the only ones deemed by Respondent
to have supervisory powers. Functionally the department operated in groups
or crews assigned to specific functions or specific operations, such as oven repair,
track crew, coal handling, and coke handling. Although Respondent had no clas-
sification of leadman , or keyman, certain functions were regularly performed by
1 or 2 men in each crew which were not performed by the others in the crew.
One such person was James E.- White of the coke handling, crew. Carried on
'Respondent's records as a machinist, White regularly,had working with him
1 employee classified as a repairman, and between them they made routine
repairs at the coke handler, the open structure with a roof but no side walls,
where the coke, a final product, was processed for shipment. On those occasions,
several times a year, when a major breakdown interrupted the flow of pro-
duction, others were assigned by Allen or Kinley to work with White.
Functions regularly performed by White not regularly performed by the other in
the coke handling crew included obtaining the "abnormal reports" of the
machine operators from the master mechanic's office, which indicated repairs
which required and received immediate attention ; obtaining from the master
mechanic's office the work requests of the coke handling foreman, in which
the latter requested that the maintenance department do certain work at the
coke. handler; assigning routine work to -hishelper and to others assigned to
,wurk•with•him on•major breakdowns and giving them instructions in the per-
formance of their work; making out repair labor abstracts so that the cost
accounting records would have maintenance costs by departments.
Clyde Elkins, the repairman who regularly worked with White for about 2
years prior to the hearing and who impressed me as a credible witness, testified
that in that job he had no responsibility to make any repairs or do anything on
his own, that all work he performed was done at the direction of White, that
be considered himself as White's helper. Fayne testified that when he worked
at the coke handler with White he did what White told him to do and tried to
do it the way White told him to do it, that he never went on his own looking for
work to do, that when be had nothing to do he would sit by the stove and some-
times White would sit there with him. Fayne testified also that it was common
practice in the maintenance' department that if a job was finished at 4 o'clock
in,theafternoon,they did not'atart on a new one unless there was a breakdown;
r tthe$ they would wait a few Moments and then go to the machine shop on the
'ay to clock out.
James E . White denied that he directed the work of those working with him,
although he admitted making suggestions to them concerning their work.and
stated that Elkins-who had worked with him for about 2 years prior to the
hearing and still was-had never objected to following any of his suggestions.
White was one of those whose ballot was challenged at the election in
February 1951, on the ground that he was a supervisor . In his report on
-challenged 'ballots the Regional, Director held that White was a crew
leader and that iiis authority to direct employees was of a routine nature, that
he was not a supervisor, and that his ballot should therefore be counted. Fol.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowing the Regional Director's report a hearing was held pursuant to Board
direction. In his hearing officer's report on challenged ballots the hearing officer
held that White was not a supervisor within the meaning of the Act4 because
such assignments of work as White made and such instructions as he gave em-
ployees were routine in nature and were given by one acting in the capacity of a
craftsman to less experienced employees.
In its Supplemental Decision and Direction just issued ° in Case No. 9LRC-
1056, the Board has adopted the findings, conclusions, and recommendations of
the hearing officer and has directed that White's ballot, among others, be opened
and counted.
There is no substantial testimony in the record before me to demand or justify
a conclusion that the assignments of work made by White to Elkins, to Fayne,
and on occasion to others, were other than routine in nature or required the
use of independent judgment by White. The conclusion is inescapable, rather,
that White was not a supervisor, that his relationship to those in the coke han-
dling crew was that of crew leader to crew member or craftsman to helper.
(c) The maintenance men at the coke handler did not work every minute
of the working day, especially the helper or helpers, and especially during the
winter of 1950-51. During the first few minutes in the morning, while White
was picking up any abnormal reports, receiving any verbal instructions from.
Allen or Kinley, and then making a general inspection of the coke handler for
a few moments, his repairman would keep himself available and near at hand,
but had no regular work to perform. Sometimes between jobs there would be
a few moments for warming by the stove in the winter or cooling by a water
fountain in the summer. There were usually a few minutes for warming at
the end of the working day when the maintenance work at the coke handler
would be finished for the day and it would be too late to undertake a new task
which could just as well wait for the morrow. This moment would be signalized
-by White, who would usually announce that the day's work was over unless there
was a breakdown. At this time White would usually tell the other member or
members of the crew to put up the tools, which consisted of hand tools, electric
welding apparatus with electric cable, and acetylene torches with hoses; and a
small wagon which carried the acetylene and oxygen tanks. Then if there was
time before they left the coke handler to ring out, they would warm by the stove
for a few minutes.
(d) Clyde Elkins testified without contradiction that during the winter months
he awaited further orders from White, when he was out of work, by sitting
on the bench by the stove at the coke handler. He stated that gas fumes
exude from the stove and that the shaker screens near the stove, constantly
moving, sound "like a freight train- a-pulling out, --but running over a loose -rail ;
clicking, steady clicking, continually." He testified- without contradiction that
many times he has fallen asleep at the fire, sometimes lying stretched out.on the
bench, sometimes for as long as 30 minutes or more, and that he has seen others
with their eyes closed, "and they would be awful comfortable." During - the
winter of 1950-51, he saw James E. White on the bench by the fire more than
once, his eyes closed, a sight that did not seem unusual to him during that winter.
He stated that at the coke handler the- maintenance men did not do as much
work during that winter as during the summer. "Last winter was a more or
less harder winter than we usually have. It was colder, it rained more, it snowed
4 Under Section 2 (11) a supervisor -is one who has authority , to, among other things,
assign work and responsibly direct employees if "the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of independent judgment."
96 NLRB 1374.
SEMET-SOLVAY DIVISION 233
more and naturally we would stand around the fire more." Although the opera-
tion kept going about the same winter and summer, the repairs did not. "We
just don't do much, as much in the winter as we did in the summer. In the
summer it is more convenient for you to work more. It's-I don't know-It's-
We -just do more in the summer than we do in the -winter." White confirmed
that upon occasion he has seen Elkins asleep on the bench and stated that on
such occasions he has not awakened him "until I had to go on the job"-that is,
until the machinery they were going to work on had been shut down by the opera-
tor so that they could go-to work, on it. White-did not deny that during the
winter of 1950-51 be himself on occasion sat by the fire with his eyes closed.
(e) The record contains a list of all discharges by Respondent for disciplinary
reasons from July 1946 until July 1951. The reasons ascribed for the dismissals
included reporting for work under the influence of intoxicating liquor, violating
safety rules, continued absenteeism (the most frequent reason ), failure to do
the work assigned, but did not include sleeping on the job during working hours.
Only Payne was discharged for that alleged reason. During 1943, however, two
men were discharged for sleeping on the job, one of them by John Allen, whose
dismissal of Payne is the subject of this inquiry.
(f) An example of how the maintenance department treated one employee
who was found absent from his work, and in a compromising attitude, was the
case of John L. Harris. One Saturday morning in the summer of 1950 Harris,
a repairman , went to work- drunk, or with, "an awful hangover" according to
his testimony. After trying to work for an hour or so, he climbed to the loft
over the carpenter shop, which he would have had difficulty accomplishing if
actually drunk, and fell asleep. A half hour or so later Galen Kinley, having
missed him and having spent about 30 minutes looking for him around the plant,
found him there. At first Kinley testified he found Harris asleep. Then Kinley
-corrected himself and said that Harris was lying down but was not asleep.
Harris observed to Kinley that he supposed he was fired ; to which Kinley replied,
according to the latter, "No, not without reason is anyone discharged ." Kinley
testified that he detected no odor of intoxicating liquor on Harris ; that he had
no idea Harris had been drinking. According to Kinley he asked Harris what
was the matter and Harris replied he was sick. Thereupon, according to
Kinley, he told him to go home and come back Monday morning. Kinley stated
that Harris did not look well. Harris testified Kinley told him to come back
Monday morning, but to be in better shape than he was today. Harris denied
that he told Kinley he was ill.
The following Monday morning while he was working, according to Harris,
John Allen, masterµmeehanic;-said -to ,him' that he didn't want that to happen
any more, referring to the Saturday incident. Allen denied this.
In the light of the entire record John Harris' version of this incident is
credited. Had Harris really been ill the strong probabilities are that he would
have reported ill and either sought or gone home rather than hide out alone in
the loft ; that he would not have said to Kinley that he supposed he was fired,
which suggests a guilty conscience not apt to be present in illness as in drunk-
enness ; that Kinley would have made some inquiry as to his illness and as to
the nature of it and whether Harris had seen a doctor; that Kinley would not
have arbitrarily ordered him to return to work Monday without first inquiring
as to the nature of his illness as a basis on which to judge whether he would
have been able to return Monday.
It is held that Respondent found Harris sleeping off a hangover on the job
in the forenoon , gave him another chance, and disciplined him only to the extent
of -sending him home and telling him not to let it happen again.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The discharge
a. The facts
Charles Payne worked for Respondent at its East Ashland plant from about
April 1948 until his discharge January 4, 1951, as a welder in the maintenance
department. Prior to that he worked some 2 years as a welder at Respondent's
plant in Ironton, Ohio, which is located across the Ohio River just a few miles
from Ashland. The record establishes that he was considered to be a good welder
and that at high altitudes he was "about" the best welder at the East Ashland
plant. During his nearly 3 years at the East Ashland plant he was given
numerous assignments in the maintenance department ; the last several weeks
before his discharge he worked at the coke handler. In White's absence on
vacation during most of these several weeks White's duties were performed by
Clyde Elkins, but the last 3 days of Fayne's employment White was back. Payne
continued working with him and Elkins was temporarily assigned elsewhere.
At the coke handler Payne did general repair work which included some welding?
but mostly other duties.
As has been noted above Fayne was effective in persuading some 50 to 60 of
his fellow employees to sign up for the Union, a number equal to about one-fifth
of those who voted in the election.
As has been found above, late in November 1950 Kinley warned and threatened
Fayne to abandon his activities on behalf of the Union. During December
Payne continued soliciting employees to sign theunion, cards: As has •beenfound
above, 2 or 3 days after, his discharge, Galen Kinley told Fayne,• In effect, that
he had been discharged because of his union allegiance and activities.
On January 4, 1951, at a disputed hour but admittedly late in Fayne's working
day (his hours were from 8 a. m. until 4:30 p. m.), when according to Payne
his work for the day was finished, Master Mechanic John Allen , the supervisor.
in charge of maintenance and Payne's foreman , came upon Payne when the
latter was warming himself by the stove at the coke handler.; Payne was sitting,
on the bench with his head resting back upon one of several panes of sheet iron
placed there to break the wind. His eyes were closed . Allen touched Payne
Payne responded. According to Fayne, he had been there for 5 or 10 minutes.
Payne testified that Allen, when he touched him, told Payne to wake up, that
Payne replied he was not asleep, that Allen replied he would have to take Payne
over to the office, to get his time., Allen confirmed that he spoke first, but said
that he said to Payne, "Charlie, you must have been asleep on the job to which
Payne replied, "I was." According•to Allen, he then said, "Well, you know that's
a•serious offense and you are not supposed to sleep on the job," Payne replying
that he knew it. Allen then allegedly said , "Well, this is the last I can take.
This is the end. Come on with me and we will, go to the office and get, your
money ." Payne testified that he then asked Allen to give him another chance
and that Allen refused. They then went to the machine shop and Allen gave
orders to have Payne's check made out.
Before leaving the plant that afternoon Payne called at the office of Jobi
R. Dobson, superintendent of the plant, and asked Dobson, to give him another
chance, which Dobson refused to do. During the conversation Payne admitted
to Dobson that he was asleep when Allen came upon him. Payne testified that
the reason he did so was that he "knew Mr. Allen thought I was asleep, and I
thought if I admitted I was asleep it would make it easier to get the job back."
On May 1, 1951, Payne called on Dobson at his office and requested his job
back, saying, according to Dobson's undenied testimony, "being as this trouble is
over I thought you would rehire me"-referring to the "union trouble." Dobson
SEMET-SOLVAY DIVISION , 235
replied that he didn't care to discuss that, that he had no work for him, and that
since Payne had left none had been hired for work in the maintenance
department.
b. Additional facts
Certain additional details contribute to the solution of this portion of this case.
(1) The General Counsel claimed, through the witness Payne, that on January
4, a few minutes before 4 o'clock in the afternoon (at which time Allen came upon
Payne at the coke handler), he finished the job he had been working on that day,
welding new plates onto a coke pan, and White told him that was all they could
do that day, to put his tools away and go out by the fire and warm. Payne put
away the tools, hung up the cable and hose, and sat by the fire.
Respondent claimed through the witness James E. White, who did not impress
me as a credible witness, that by 3:30 o'clock that afternoon Payne had finished
installing the last plate cut and White said to Fayne that they had better go
down to the ground and cut out another plate (with the acetylene torch). Payne
said that he was cold and White replied that he was too, that they would lower
the acetylene hose to the ground, and then warm, and when they were warm they
would cut out another plate, which they could weld in the following day if they
didn't that day. So they lowered the hose and went to the fire to warm. Whtie
stood there a few moments and then left the coke handler to do something, giving
no instructions of any kind to Payne as he left. Payne sat on the bench by the
fire. White did not return before Allen arrived.
„In-,>ln affidavit ,given to a field examiner, of the Board,, about 2 months+before
the hearing (in the preparation of which, White testified, he understood the field
examiner wanted the truth and White was trying to give him the truth °) White
stated that when he left Payne at the stove they could do nothing more on the
job they had been working on because it was too late in the day and there was no
work Payne could do alone. In view of his prior contradictory statement on
this material issue I am unable to credit White's testimony at the hearing that
when they went to warm there was more work to be done that day by Payne. In
this connection it should be noted that in its answer Respondent averred that
Payne was discharged for sleeping on the job during working hours, not for
sleeping on the job when he had work to be done. It is held, as testified by
Payne, that White told Payne their work for the day was completed, that he
should put up the tools and go warm by the fire, and that Payne did so.'
White in general did not impress me as a credible witness. He testified that
he had been regularly stationed at the coke handler for something over 2 years.
In the hearing on challenged ballots 8 held in June 1951, White testified that he
had been stationed at the coke handler up to that time "approximately 3 years."
In his affidavit, given shortly before the hearing on challenged ballots, he set
thei period at 31/2 years. It is seen that in as, simple,a,matter as how long he
worked on one assignment, White was unable to be consistent from one testimony
to the next.
(2) Respondent's testimony endeavored to advance by about one-half hour
the time that Payne went to sit by the stove, so as to increase the likelihood that
lie had work remaining to be done. Master Mechanic John Allen testified that
The statement , whether sworn to, as testified by the field examiner, or unsworn to, as
claimed by White, was usable to discredit the witness. Quest-Shun Mark Brassiere Co.,
Inc., 185 F. 2d 285.
T Allen 's testimony that he saw tools as he came up the stairs to the first floor above
the ground , where he found Payne, and White's testimony that later that afternoon he
himself put the tools , torches, hoses, and cables away, is not credited.
8 In Case 9-RC-1056.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he left the -coke handler with Fayne, after coming upon him there, at about 3: 15
or 3 :'30 o'clock. In the hearing on challenged ballots 9 Allen placed the time at
3: 50 or 3: 52 o'clock. James E. White testified that he stood at the stove for only
3 or 4 minutes when he went there with Fayne at about 3: 30, and that Payne
was no longer there when he returned to the coke handler at about 4 o'clock.
In his affidavit White stated that he stood by the fire about 15 minutes. On
cross-examination White stated that he could not have stood there as long as 15
minutes. In view of these contradictions I am unable to credit Respondent's
testimony concerning the time of the incident at the coke, handler. It is held,
as testified by Fayne, that he sat by the fire for 5 or 10 minutes and that Allen
touched him and spoke to him at about 4 o'clock.
(3) Contradictory also was Respondent's testimony as to Fayne's position
when Allen came up to him. Payne said Allen grabbed him by a shoulder.
Lemaster, the greaser, called as a witness by Respondent, testified that he saw
it and that Allen shook Payne. Allen, saying nothing about shaking him, testi-
fied that he kicked Payne's foot. Lemaster said that Fayne's legs were crossed.
Allen said they were stretched out.
Respondent's witnesses testified that when Allen came up Fayne's mouth was
open. Clyde Elkins testified that the normal position of Fayne's mouth is open
even when he is awake. I noted that during the hearing Payne's mouth was open
a great deal of the time, while he sat listening to testimony. Elkin's testimony
is credited.
Allen testified that when he was near Fayne but before he kicked his foot, he
called to Lemaster, who was a few feet away, and that this did not cause Fayne
to move at all. When Allen touched Fayne and spoke to him Payne arose, rubbed
his eyes with his hands, and looked around.
(4) The question arises as to whether Payne was asleep or only dozing-
although each of the briefs submitted allows that the answer is not vital to the
Solution of the case. There was no expert testimony as to the differences be-
tween dozing and sleeping and the tests for determining exactly when one passed
from the former into the latter state. It is probable, however, that during the
5 or 10 minutes Fayne sat by the fire he had not reached the point of being
asleep-although he may have been well on the way.
Fayne admitted, however, as found above, that he knew Allen thought he was
asleep, an admission consistent with the record concerning the incident.
It should be noted that Allen did not testify that he discharged Payne for
sleeping on the job. Allen was not asked the reason why he discharged Fayne.
Nor, according to the testimony of both Fayne and Allen, did Allen tell Fayne
he was discharging•him•for sleeping on the job.
Respondent's brief contends in effect that Fayne was discharged for sleeping
on the job in violation of Respondent's rules. Respondent's Superintendent Dob-
son testified that Respondent had rules and regulations concerning discharges, but
that neither the rules nor the penalties were posted. The record is silent as to
the provisions of the nonposted rules and regulations. The record is silent as
to whether they included sleeping or dozing as a ground for discharge.. Under
these circumstances it is held that insofar as the record shows, Payne was not
discharged for violating any company rule.
C. Conclusions
The preponderance of the credible testimony in this case convinces me,that
the "sleeping" incident was the occasion of but not the reason for Fayne's
discharge.
9 In Case 9-RC-1056.
SEMET-SOLVAY DIVISION 237
As found above, a few weeks' before his discharge the assistant master me-
chanic,,who worked closely with the master mechanic, warned Payne to have
nothing to do with the Union; and a few days after his discharge the same
.assistant master mechanic told him in effect that he had been discharged because
he had failed to heed the warning-in other words because of his union activities.10
Kinley must have been speaking from information he had but did not disclose
to Payne. Both of these statements by Kinley, sandwiching as they do the dis-
charge, indicate that Kinley knew the discharge was for some reason other than
the alleged reason of sleeping on the job, that there was discriminatory motiva-
tion, and that the real reason was the active role Payne had played in attempt-
ing to organize the employees.
Kinley's predischarge warning and threat to Payne indicated beyond ques-
tion that word of Fayne's organizing activities had reached the ears of the super-
visors, as well it might have in view of the large number of employees he had
personally approached concerning the Union and the comparatively small plant
involved "
Monroe Chandler's comments to Stergeon as to the exact number Payne had
signed up the day before, and that some who were previously in favor of, the
Union no longer were, are further indications that Respondent knew, and even
had intimate knowledge. Kinley, Chandler, and the other supervisors attended
regular foremen 's meetings twice a week, immediately before and after which
foregatherings there must have been opportunity for word of Kinley's activities
to spread to others including Allen. The record indicates that both Allen and
,Kinley did some office work in the office in the machine shop, Allen spending more
time at that kind of work than Kinley, who spent more time in the yard than
Allen. Insofar as the record shows they worked in harmony. Under these cir-
cumstances it is reasonable to infer that Kinley's knowledge of Payne' s union
activities was shared by Allen and that Kinley was advised as to what Allen
thought about such activities and in ,speaking to Payne as he did was speaking
from such knowledge.
The preponderance of the testimony in this record shows that when Allen
touched him and spoke to him on January 4, 1951, Payne was doing nothing
unusual and nothing which had theretofore given rise to discharge or been cited
as the cause for discharge. He was warming at the stove and sitting on the
bench provided for that purpose at a time late in the working day when the man
who assigned him work had told him the day's work was done. When he worked
with White he did, as did Elkins, what White told him to do and nothing else.
As the maintenance department was operated he had no obligation to seek out
work to do, but only to do what he was told. He had been told the day's work
was done and he could sit by the fire. As he did so he was available for any
further assignment. Instead Allen arrived.
.Although Allen testified he had not during the 5 years before Payne's discharge
seen anyone asleep on the job, he did not deny knowledge of the fact established
in this record that employees on occasion doze or sleep by the stove at the coke
handler. Allen spent a portion of every day inspecting maintenance jobs and
requirements throughout the plant. He testified that he made at least one round
of the entire plant each day and tried to make two rounds. Kinley was circulat-
ing around the plant much of the working day. It is inconceivable that Allen did
not know of this practice at the coke handler. It is held that he did know of it.
We are not concerned here with the morals or ethics of dozing or sleeping on
the job or whether there is any implied obligation on the part of working men to
10 Cf. Edward M . Jenks, 81 NLRB 707.
n About 250 employees were employed in the plant. Cf. Quest-Shon Mark Brassiere Co.,
Ino., 80 NLRB 1149. -
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
busy themselves looking for work to do when they have been told by those who
direct their routine work from hour to hour, day to day, that there is no more work
to be done. Nor are we concerned here with how the working habits of the main-
tenance crew at the coke handler happened to develop as they did-whether from
the inevitable loose supervision which develops when 70 or 80 employees working
over a large area are supervised by only 3 supervisors, or from some other cause.
We are concerned only with viewing a specific incident on the stage on which it
occurred. Such view discloses that it was customary for White to announce late
in the working day that unless there was a breakdown the day's work was done
and that on this 'specific occasion White told him the day's work was done.' Such
view discloses also that sitting by the stove, even dozing or sleeping, was com-
pletely normal and that the stove was the place where the man or men working
with White awaited further assignments from him when they were out of work.
It is clear also that in no sense were those who sat or dozed or slept by the stove
during the winter months hiding out from supervision or away from their work.
They were there and so was Fayne on the specific occasion, as a part of their
normal workday, available for further assignments, pursuant to a custom known
to and condoned by the supervisors of the maintenance department.
It follows that when Allen found Fayne on the bench late in the afternoon
January 4, 1951, he seized upon the condition in which he found him as a pretext
for getting rid of him. After but a momentary hesitation he told Fayne-he was
'discharged. He did' not inquire how long Fayne had been there, whether he had
any work to do, where White was (Allen testified he had not seen White all after-
noon ). He did not seek answer to any of these questions from Lemaster, who
stood nearby. It is reasonable to believe that had Allen not been seeking a pre-
text for eliminating Fayne from the payroll because of his organizational efforts
he would have sought answer to these questions rather than jump to the Immedi-
ate conclusion to discharge Fayne. It is reasonable to believe that at the very
least he would have checked with White before discharging Fayne, to learn
whether Fayne had done the work expected of him that day. His failure to
make these inquiries shows that he was not interested in finding the facts and
that he was no longer interested in keeping Fayne in his employ, even though he
knew Fayne was a good welder . His main interest in Fayne at this point was
to find a pretext to be rid of him, and discovering whether he was supposed to
be working at that moment and whether White had lined up some work for him
to do might have upset the pretext.
It is held that by discharging Fayne on January 4, 1951 , Respondent unlaw-
fully restrained and coerced its employees in violation of Section 8 (a) (1),
and discriminated against Payne in regard to his -hire and tenure of 'emplgy-
ment, thereby discouraging membership in the Union , in violation of Section 8
(a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent 's activities, set forth in Section III, above , occurring in connec-
tion with Respondent's operations 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set
forth above, I recommend that it cease, and, desist' therefrom and that it -take
certain affirmative action designed to effectuate the policies of the Act. ,
SEMET-SOLVAY DIVISION 239
Respondent having discharged Charles Fayne because of his union and con-
certed activities, I recommend that Respondent offer to him immediate and full
reinstatement to-his former or a substantially equivalent position ' without
prejudice to his seniority and other rights and privileges and make him whole
for any loss of pay be may have suffered by reason of Respondent' s discrimina-
tion against him by payment to him of a sum of money equal to that which he
normally would have earned as wages from the date of his discharge, the date
of the discrimination against him, to the date when, pursuant to the recom-
mendations herein contained,, Respondent shall offer, him reinstatement, less his
net earnings during said period." Loss of pay shall be determined by deduct-
ing from a sum equal to that which Fayne would normally have earned for each
quarter or portion thereof, his net earnings, if any, in other employment during
that period. Earnings in one particular quarter shall have no effect upon the
back-pay liability for any other quarter. The quarterly periods described here-
in shall begin with the first day of January, April, July, and October 14 It
is recommended further that Respondent make available to the Board, upon re-
quest, payroll and other records in order to facilitate the checking of the amount
of back pay due.16
Because of the Respondent's unlawful conduct and its underlying purpose and
tendency, I find that the unfair labor practices found are persuasively related
to other unfair labor practices proscribed and that danger of their commission in
.the, future is to be antictipated from-the course of the ?Respondentls conduct' in
the past 16 The preventive purpose of the Act will be thwarted unless the order
is coextensive with the threat . In order, tperefore , to make effective the in-
terdependent guarantees of Section 7, to prevent a recurrence of unfair labor
practices, and thereby to minimize industrial strife which burdens and obstructs
commerce, and thus effectuate the policies of the Act, I will recommend that Re-
spondent cease and desist from in any manner infringing upon the rights guaran-
..teed in Section 7 of the Act.
CONOLUSIONS OF LAW
1. Semet-Solvay Division , Allied Chemical and Dye Corporation , is engaged
In commerce within the meaning of Section 2 (6) and (7) of the Act.
2. United Gas, Coke and Chemical Workers of America, CIO, is a labor organ-
ization within the meaning of Section 2 (5) of the Act.
3. During late November 1950, by warning Charles Fayne to have nothing to
do with the Union, Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act, and there-
by has engaged in and is engaging in unfair labor ' practices within the meaning
of Section $ (a) (1) of the Act.
4. During December 1950, by interrogating Buster James Stergeon as to his
thoughts about the Union, Respondent interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
5. During January 1950, by informing Charles Fayne that he had been dis-
charged because of his allegiance to and his activities on behalf of the Union,
Respondent interfered with, restrained, and coerced its employees in the exer-
n The Chase National Bank of the City of New York, San Juan , Puerto Rico, Branch, 65
NLRB 827.
18 Crossett Lumber Co ., 8 NLRB 440, 497-8 ; Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
14 F. W.• Woolworth)Company, 90 NLRB 289.
m F. W. Woolworth Company, supra. '
14 N. L. R . B. v. Empress Publishing Co., 312 U. S. 426.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
else of rights guaranteed in Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. By discriminating in regard to the hire and tenure of employment of
Charles Fayne, thereby discouraging membership in United Gas, Coke and
.Chemical Workers of America, CIO, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and 8 (a) (3)
of the Act. •
7. The aforesaid 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 in this volume.]
STATIONERS CORPORATION and WAREHOUSE, PROCESSING & DISTRIBU-
TION WORKERS UNION LOCAL 26, INTERNATIONAL LONGSHOREMEN'S
& WAREHOUSEMEN'S UNION, PETITIONER. Case No. 21-RC-1375.
May 21,1952
Supplemental Decision and Direction
On December 19, 1951, the Board issued a Decision, Direction, and
Order herein 1 in which it (1) overruled the challenges to 10 of the
11 challenged ballots; and (2) found that the Employer's exceptions
had raised material issues of fact as to the supervisory status of
William Kennoy, who cast the other ballot. The Board directed that
if, after the 10 challenged ballots were opened and counted, it should
appear that the ballot of William Kennoy could affect the results of
the election, a hearing should be held to determine whether or not he
was a supervisor at the time of the election.
Upon the opening and counting of the 10 challenged ballots, it
appeared that the ballot, of William Kennoy might affect the results
of the election. Accordingly, on February 5, 15, and 19, 1952, pursu-
ant to the Board's Order, a hearing was held before Ben Grodsky,
hearing officer. The Employer and the Petitioner appeared and par-
ticipated.
On March 12, 1952, the hearing officer issued and served upon the
parties a hearing officer's report, a copy of which is attached hereto, in
which he found that William Kennoy did not in fact possess or assert
supervisory authority, and recommended that the challenge to his
ballot be overruled. The Petitioner filed exceptions to the hearing
officer's report, and the Employer filed a brief in support of the
report.
The Board 2 has reviewed the rulings of the hearing officer and finds
no prejudicial error was committed. The rulings are hereby affirmed.
The Board has considered the hearing officer's report, the exceptions,
197 NLRB 601.
2 Pursuant to the provisions of Section 8 (b) of the Act, the Board has delegated Its
powers in connection with this case to the same three-member panel participating in the
original decision [Members Houston , Murdock , and Styles].
99•NLRB No. 47.