American Enka Corp.

National Labor Relations Board - Board Decisions

Oct 22, 1940

27 N.L.R.B. 1057 (N.L.R.B. 1940)

In the Matter of AMERICAN ENKA CORPORATION and TEXTILE WORKERS
UNION No. 22129, AMERICAN FEDERATION OF LABOR
Case No. C-1600.-Decided October 22, 1940
Jurisdiction : rayon yarn manufacturing industry.
Unfair Labor Practices
In General: employer responsible for activities of supervisory employees.
Interfei ence, Restraint, and Coercion: anti-union statements : threat of tempo-
rary shut-down ; advising new employees to refrain from union activity and
of employer's desire to keep unions out of the plant ; characterizing union as
"rackets"; declarations of preference for "inside" organization; ordering police
to keep organizers outside, plant and to "keep down" organizations which
succeeded in getting an organizational start; employee urged by supervisory
employee to sign a petition which was being circulated in, the plant not to
join "outside" organization.
Company-Dominated Union: continued domination, contribution of support to
and interference with the administration of "Committee" plan which respond-
ent initiated and formulated prior to effective date of Act-support: elections
conducted on company time and property, respondent furnishing ballot boxes,
voting booths and printed forms for all ballots ; certificates of election posted
on company bulletin boards ; elected representatives consulted with employees
as to their grievances on company time and property and held their private
meetings on company property ; representatives -paid at their regular 'rate
for all time spent in consultation with employees and in committee meetings ;
assumption by respondent of all expenses-indicia of domination : absence of
provision in "code" for membership, meetings, or group instruction to repre-
sentatives ; permitting amendments only upon consent of management ; em-
ployee participation limited to bi-annual elections of representatives.
Remedial Orders : disestablishment of company-dominated union.
Mr. Chas. Y. Latimer, for the Board.
Larkin, Rathbone & Perry, by Mr. T. R. Iserman, Mr. J. D. Leary,
and Mr. Nicholas Kelley, of New York City, and Mr. S. G. Bernard,
Cllr. R. R. Williams, and Mr. W. A. Egerton, of Enka, N. C., for the
respondent. -
Mr. L. James Johnson, of Bath, S. C., for the Union.
Miss Charlotte Anschuetz, of counsel to the Board.
27 N. L. R. B., No. 171.
1057
323428-42-vol. 27-68
1058 _ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon* charges duly filed by Textile Workers Union No. 22129,
affiliated with the American Federation of Labor, herein called the
Union, the National Labor Relations Board; herein called the'Board,
by the Regional Director for the Fifth Region (Baltimore, Maryland),-
issued its complaint, dated March 9, 1940, against American Enka
Corporation; Enka, North Carolina, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (2) and Section 2 (6), and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint, notice of hearing thereon, and notice of postponement
of hearing were duly served upon the respondent, the Union, and the
Factory Workers Committees, herein called the Committees, a labor
organization alleged in the complaint to be, dominated. by the
respondent.
The complaint charged, in substance, (1) that the respondent,
since July 5, 1935, continued -to dominate, to contribute to the sup-
port of, and to interfere with the administration of, the Committees
which it formed and sponsored on or about September 29, 1929;
(2) that the respondent urged, persuaded, and warned its employees
to-refrain from becoming or remaining members of the Union, and
threatened them with discharge or other reprisals if they became
or remained members thereof; and (3) that by the foregoing acts the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
On March 20, 1940, the respondent filed a motion for a bill of
particulars, upon which no ruling was made by the Regional Director.
On March 26, 1940, it filed its answer in which it denied that it had
engaged in the unfair labor practices alleged in the complaint and
asserted (1) that-its employees formed the Committees in 1929 by
electing representatives to bargain collectively with the, respondent's
management, and (2) that since October 1933 said management has
bargained with the Committees under a Code and a Method for Elec-
tion of Representatives and Alternates which were 'submitted to, it
at said time by the Committees and accepted by the management.
Pursuant to notice, a hearing on the complaint was held on April
15, 16, 17, 18, 19, 22, 23, 24, 25, and 26, 1940, at Asheville, North
AMERICAN ENKA CORPORATION 1059
Carolina, before Guy Van Schaick, the Trial Examiner duly desig-
nated by the Board. The Board, the respondent, and the Union were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties. At
the commencement of the hearing, the respondent renewed its motion
for a bill of particulars. Certain particulars were thereupon orally
furnished by counsel for the Board; at the request of counsel for the
respondent, the motion was granted as to the particulars so furnished
and denied in all other respects. At the close of the-`Board's case,
the respondent moved to dismiss the complaint for failure of proof
and the Trial Examiner reserved ruling on this motion. The re-
spondent thereupon moved for a mistrial on the ground of the Trial
Examiner's bias and prejudice. • This motion was denied. ^ At the
close of the hearing, counsel for the Board moved for leave to conform
the complaint to the proof, which motion was granted. Thereupon
the respondent renewed its motion to dismiss the complaint for
failure of proof. The two motions to dismiss the complaint were
denied by the Trial Examiner in his Intermediate Report: -
During the course of the hearing the Trial Examiner made numer-
ous rulings on other motions and on objections to the admission of
evidence. The,Board has reviewed the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rulings
are hereby affirmed. Pursuant to permission granted at 'the con-,
elusion of the hearing the respondent submitted, a brief for the con-
sideration of the Trial Examiner. ,
On June 4, 1940, the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon the parties, finding that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within, the meaning of Section ' 8 (1) and
(2) and Section 2 (6) and (7) of the-Act, and recommending that
the respondent cease and desist therefrom, withdraw all recognition
from and completely disestablish the Committees as the representative
of its employees for the' purposes of collective bargaining, and post
appropriate notices.
On June 26, 1940, the respondent filed exceptions to the Inter-
mediate Report and requested oral argument before the Board. On
July 10, 1940, the respondent filed a brief with the Board. Pursuant
to notice duly served on all the parties, a hearing for the purpose
of oral argument was held before the Board at Washington, D. C.,
on July 11, 1940. The respondent was represented by counsel and
participated in the argument. The Board has considered the excep-
tions to the Intermediate- Report, and, in so far as they are incon-
1060 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
sistent with the findings, conclusions ; and order set forth below,
finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The American Enka Corporation, a Delaware corporation, with its
plant and principal office located at Enka, North Carolina, is engaged
in the manufacture of rayon yarn. The raw materials used annually
by the respondent are valued at approximately $3,500,000 and consist
mainly of about 12,000 tons of wood pulp, 16,000 tons of sulphuric acid,
22,000 tons of caustic soda, various other chemicals, and coal. Almost
all the wood pulp, valued at-about $1,000,000 is shipped to the respond-
ent's plant from Canada. Practically all the other raw materials are
procured by the respondent from States other than North Carolina.
The respondent annually produces finished products valued at, about
$12,500,000, of which over 50 per cent are shipped to points outside
North Carolina.
The respondent's employees number about 3,000, including about 150
supervisory and 150 clerical employees.
H. THE ORGANIZATIONS INVOLVED
Textile Workers Union No. 22129 is a labor organization affiliated
with the American- Federation of Labor, admitting to membership
employees of the respondent.
The Factory Workers Committees, as an aggregate, is an unaffiliated
labor organization admitting to participation.employees of the respond-
ent, with the exception of foremen, foreladies, inspectors, clerks, time-
keepers, and any employees of supervisory capacity.
III. THE UNFAIR LABOR PRACTICES
A. The formation and administration of the Committees prior to the
effective date of the Act; the respondent's policy towards affiliated
labor unions
The respondent commenced manufacturing operations at its plant
in the summer of 1929 with several hundred employees. During the
first few months of operation,'many employees came to the office of J. P.
Gill, the plant manager, to "bring up things." Soon, however, the
presentation of grievances by individual employees grew too onerous,
and, according to A. J. L. Moritz, vice president of the respondent in
charge of all' plant operations, "we found it necessary to have some
means of representation of employees, and representatives were chosen
AMERICAN ENKA CORPORATION 1061
to talk over their problems with the management." 1 Further, accord-
ing to Moritz, "it has been our intention from the first day the plant
started to have people properly, represented." Thus on September 9,
1929, the respondent posted on its bulletin boards overithe signature of
Moritz, notices addressed to the "Factory Committee for Men" and the
"Factory Committee for Women," ? announcing semi-monthly meetings
for each Committee with the management. Although the details con-
cerning the first election of committee representatives are not fully dis-
closed in the record, such representatives and their alternates were for-
mally chosen at elections sponsored by the respondent for 6' months'
periods. Arrangements for the conduct of the elections were made in
the office of respondent's secretary; a election notices and election re-
sults signed by Gill were posted on the respondent's bulletin boards;
minor supervisory officials apprised the employees when to vote; voting
equipment-ballot boxes and ballots-were furnished by the respond-
ent, the ballots being distributed through supervisory employees, or
,with employees' time cards. Meetings between the Committees and
representatives of the respondent to discuss grievances occurred twice
a month during working hours. The respondent provided also for
meetings of each Committee by itself, if such were desired, upon
company time and property.
In 1933 a feeling was prevalent among the employees that minor
supervisory officials were exerting undue influence upon the elections
and that the manner of conducting elections was causing inaccuracy in
the results. A special committee of four men and women was there-
fore appointed by the two Committees to draft a,.code for the election
of representatives. This proposed code was' presented to the Com-
mittees and to the management. With the exception of a slight change
suggested by Moritz and approved by the Committees, the code was
unanimously adopted by the Committees and accepted by the manage-
ment. The essential feature of this new plan was the provision that
employees were to conduct the elections by themselves in a uniform
manner through an election committee composed of the retiring rep-
1 Moritz made this statement at a preliminary conference on November 9, 1939, which
was attended by J A Penello , a Field Examiner for the Board, and Moritz , Gill , C. Van-
derhooven , the respondent 's secretary , and W. A. Egerton , an attorney for the respondent.
A transcript of the pioceedings at this conference was admitted into evidence At the
hearing Gill testified that "Like Topsy, it ( the Committee system ) just grew" when "one
worker got to bringing up things for several "
The Alen's Committee consisted of the chemical vacuum wash and spinning depart-
ments , where the men predominated , and the women 's Committee of the textile depart-
ment, where women predominated
The respondent cites in its bilef the testimony of Roy Robinson to prove that the first
elections were informal and not company-inspired. Robinson testified that when he was
chosen a representative late in 1929 " the men got together and decided on me to go up."
His following answers indicate ,` however, that he recalls nothing of the election procedure,
the Committees , or the meetings , except the fact that there were meetings which he
attended.
1062 DECISIONS OF NATIONAL.LABOR RELATIONS BOARD
resentative and two assistants selected by him from other departments
and with the aid of a private polling booth and official lists of em-
ployees. The code made provision also for the office of, the respond-
ent's secretary to furnish a small booth , table, ballots and ballot box,
voting lists , and posters " for the posting of election notices and election
results on the respondent 's bulletin boards and their publication in
the Enka Voice, a monthly magazine published by the respondent for
the employees , and for the supervisors to permit the holding of elec-
tions during working hours and the voting . of employees in an orderly
manner without undue loss of time.
The attitude of the respondent towards attempts by the United
Textile Workers of America, an affiliate of the American Federation of
Labor, to act as a collective bargaining representative during approxi-
mately -the same period is in sharp contrast to the assistance and sup-
port , which it afforded the Committees . In early 1934 a number of
the respondent 's employees joined this labor organization , and on Feb-
ruary 1, 1934, were given a charter as Local 2113. Approximately
200 employees became members . On July 23, 1934 , a committee con-
sisting of members of Local 2113 and of Edward C. Cluney, national
organizer , requested an appointment with Moritz to discuss the labor
situation at Enka. Moritz first denied this request by asserting that
grievances could be presented to the management through Committee
representatives and voiced the opinion , referring to Cluney, that he
saw no cause to "bring in outsiders ." Finally he stated that he would
confer with Cluney if 20 employees signed a letter requesting such an
interview . The following day, all employees of the respondent found
attached to their time cards a mimeographed letter signed by Moritz.
This letter was concerned with the proper interpretation of Section 7
(a) of the National Industrial , Recovery Act,4 and openly manifests
Moritz's attitude regarding labor organizations : -
During our recent Factory Committee Meeting I had occasion
to explain the Company 's and my own standpoint in the matter
of'employee representation. -
* * * This article ( Section 7a ) does not require any em-
ployee to become a member of any outside organization * *
I want to again state very definitely that I personally am against
calling in ' outsiders to handle our , internal- and personal
affairs * - * *
By maintaining our present representative system, which you
yourselves have built up, we will be able to continue to live and
4 "Employees shall have the right to organize and bargain collectively through repre-
sentatives of their own choosing , and shall be free from the interference , restraint or co-
ercion of employers of labor , or their agents , in the designation of such representatives or
in self organization or in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection."
AMERICAN ENKA CORPORATION 1063
work in harmony' * * * Therefore, putting myself in your
place, I personally certainly would refuse to join outside organiza-
tions whose salesmen may only be interested in collecting your
money and. sowing discord and discontent. Why jump into a
plan which might break up the pleasant relations which have-
until now existed between you and your management and which
I hope will continue for many years?'
Let me tell you again that I am in favor of a square deal for
the. workers and that the best way to enable me to give this square
deal' is for the workers to keep on dealing directly with me and
not through a, third party *
Very truly yours,
A. J. L. MORITZ.
Although Local No. 2113 published an open reply to this-letter in The
West Asheville News of August 3, 1934, its organizational efforts as
regards the respondent's employees failed. -
The evidence establishes that the respondent initiated and formu-
lated the Committees. Such activities occurred prior to July 5, 1935,
the effective date of the Act, and therefore cannot constitute unfair
labor practices within the meaning of the Act. They are, however,
essential to an appraisal of those activities of the respondent subse-
quent to July 5, 1935, which are in issue in this proceeding, and will
now be considered.5
B. Continued domination and support of the Committees after the
effective date of the Act: the respondent's policy towards affiliated
labor unions - - '
Following the passage of the Act in 1935, the Committees continued
in operation substantially as originated by the respondent and without
appreciable change in their relationship to the respondent. The man-
agement continued to aid the Committees as prior to passage of the
Act. All elections were held in the plant during working hours, the
employees voting a few at a time so as not to interfere with the plant
operations. They consisted, as before, of primary elections in which
the voting employee wrote the name of two nominees on a blank ballot
form; and final elections in which the employees used ballots containing
the names of the four leading candidates. All employees were eligible
to vote; there was no provision for membership. Voting booths, ballot
boxes, printed forms for the ballots, voting lists, and posters were fur-
5Matter of Pennsylvania Greyhound Lines, Inc, Greyhound Management Company, Cor-
porations and Local Division No. 1063 of The Amalgamated Association of Street, Electric
Railway and Motor Coach Employees of America, 1 N. L. R. B. 1, 313 U S. 261; and
Matter of Bethlehem Steel Corporation, a Delaware corporation , Bethlehem Steel Company,
a Pennsylvania corporation and Steel Workers Organizing Committee , 14 N. L. R. B. 539.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nished by the respondent. Posted on the Company bulletin boards were
announcements of elections to be held and of the results of the elec-
tions, the latter including directions to the representatives how to
perform their functions. These notices appeared over the name of Gill.
As was true prior to the passage of the Act, each of the two Com-
mittees met once a month with Gill and Vanderhooven, and once with
Moritz, Gill, and Vanderhooven. In advance -of meetings, representa-
tives were given an opportunity to consult with the employees in their
respective departments as to grievances or requests. They then pre-
sented these suggestions and complaints or others of their own to the
management. The latter discussed the suggestions with the repre-
sentatives and thereafter made its decision in each case, usually ad-
vancing reasons if it refused to act as desired. These conferences with
the management occurred during working hours as did also the con-
sultations between employees and representatives, and employees who
attended when they were off duty were paid for 4 hours' time at their
i egular rate. The meetings lasted from 3 to 4 hours ; Gill assumed
responsibility for checking the attendance and for dismissing the meet-
ings. Meetings of the committee representatives without the presence
of the management also took place during working hours, usually in
the men's or women's cafeteria, and required the respondent's consent.
In the spring of 1937 the representatives appointed a Special Work-
ers Survey Committee to appraise the rules and regulations governing
the Committees and to offer suggestions regarding organization. The
recommendations of this survey committee included the establishment
of an executive 'council to represent all workers collectively, and the'
reorganization of the two committees into three with an increase in the
number of representatives to provide more equitable representation s
These changes were presented to the management for its approval, and
after having been approved 7 were submitted to the Committees. All
the changes were approved by two committees, With the exception of
the provision for the executive council which failed to pass the men's
committee. One additional change was made in 1939 by the respond-
ent, when, in order to dispense with personal notice of meetings by
supervisory officials, it distributed small pocket calendars with com-
mittee meeting days marked in red to all representatives At about
this same time, one of the employees, Roy Whitmire, took over from
Gill the function of calling the roll at the meetings. Gill continued
to keep the attendance records.
6 Since this change the Committees are as follows • The Service and Miscellaneous De-
partment Committee ; The Chemical , Spinning & Washing Departments Committee, and
The Textile Department Committee.'
7 According to one special survey committee member, Blanche Fulgum, some suggestions
were made of which the management did not approve. They therefore were apparently
not presented to the Committees k
AMERICAN ENKA CORPORATION 1065
In all other respects the Committees continued, to function as they
had before passage of the Act and the respondent accorded them the
same support and aid, and continued its efforts to promote them.
No provision was ever made for membership in the Committees or for
general meetings of employees to instruct delegates. or receive reports.
At the same time, hostility of the respondent to outside 'organiza-
tions did not abate, and labor union activity was discouraged. One
Luther Powers was a member of the plant police force from the open-
ing of the plant to September 1936. He testified that at the time of
the passage of the Act and at least until his employment was termi-
nated, instructions by Frank Conder, superintendent of the respond-
ent's police, to the following effect were in existence: the policemen
were ordered to prevent the entry of unions and union organizers into-
the plant and to "keep down" unions which succeeded in getting an
organizational start. Powers testified that these instructions had also
been given before die passage of the Act,8 and his testimony is sup-
ported by that of Leon Moffitt, who was also employed as plant police-
man when the plant opened.9 Conder did not testify, and no witness
was called to refute Conder's alleged instructions. Under the cir-
cumstances we credit the testimony of Powers and Moffitt, and find,
as did the Trial Examiner, that Powers and Moffitt received instruc-
tions from Conder substantially as`related in their testimony above. '
In 1936 the Textile Workers Organizing Committee, affiliated with
the Committee for Industrial Organization,1° herein called the T. W.
O. C., attempted to organize the respondent's employees. In the
spring or summer of that year, Clarence E. Justice, a funnel checker
in the pot spinning department, was summoned to his superintendent's
office and questioned concerning distribution of union literature in
the plant. He denied such activity on his part, but shortly thereafter
his shift master, Bob Robinson, made the following statement to him :
"You have-been notified about this union work around here. You are
talking union again. Mr. Auer and Mr. VanKlink has had you in the
office every day, and if I hear any more of it, I am going to run
you out."" About the same time, Nettie May Pharam, a committee
representative, circulated a petition not to join,the T. W. O. C. in
the reeling department during working hours. - An employee, Roma
'Rogers Ballard, reluctantly signed it at the urging of Ruby Caldwell,
her "red band," Who said : "Well, all the rest of the girls have, and
8 In 1934, Powers asserted, when Cluney was engaged in organizing for the United Tex-
tile Workers of America, his orders were to keep him under close surveillance and to pre-
vent his entering upon company grounds or distributing union literature He testified also
that at that time the policemen were instructed to investigate the union history of appli-
cants for work _
8 Afoffitt's employment terminated in 1932
18 Now the Congress of Industrial Organizations.
"Neither Robinson 's nor Ruby Caldwell 's statements were denied.
1066 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
you might as well go and sign it." The "red bands" and the "green
bands" are the immediate supervisors of the women employees. The
red band corresponds to a foreman and .the green band to an inspector.
The employees report to the green band, the green band to the red
band, and both the green band and the red band to the master.'- We
find, as did the Trial Examiner, that red and green bands are super-
visory employees and that the respondent is responsible -for their activ-
ities.13 In December of the same year, 1936, a poster appeared on "the
company's bulletin board" which depicted a pay-roll window and bore
the inscription "If you want to close this window join the C. I. 0."
Gill denied that he had authorized or seen this poster. In view of his
testimony, however, that no notices appeared on the bulletin boards
without his authorization, the respondent must assume responsibility
for the appearance of the poster. The attempt of the T. W. 0. C. to
organize the respondent's employees subsided shortly thereafter.
During the following 2 years, _anti-union statements were made
openly by E. M. Salley, employment manager, to new employees. Nick
Collins and William E. Austin testified' that they were "advised" by
Salley, when they were hired in January 1937, to refrain from all union
activity. In August 1938 Salley told Chester Roberts that if anyone
requested him to sign a union card, he should report it. In September
1938 Salley explained to James M. Roane, a new employee, that it was
the desire of the respondent to keep unions out of the plant, that the
respondent was "doing very well" without them, and that they (the
new. employees) would be solicited for membership before the end of
their first week. Salley made a similar statement to Harrison A.
Bishop in July 1938, saying "that they had been getting along very
nicely and that they have had no strikes and that they had no labor
troubles due to the fact that they had no labor unions, and that he
didn't think it was wise to have them." In addition he advised
Bishop that if anyone asked him to join.a union he "should hit him
in the head with a lead pipe" and report him to a supervisor. Salley
denied any mention of labor unions,to new employees and declared
he had never discussed the union with any employee, or anyone in
the plant. The testimony of Bishop was denied also by Robert 0.
Murray; a boy hired with Bishop but discharged 3 weeks later for
"The respondent 's supervisory employees in order of responsibility are roughly as fol-
lows ( not all departments follow the identical pattern ) . vice president in charge of organ-
izations, plant manager , department heads or superintendents , masters , . foremen shift
masters, leading men, and inspectors
13 Matter of Tennessee Copper Company and A . F. of L. Federal Union No. 21,164, 5 N L.
R B. 768; Matter of Ward Baking Company and Committee for Industrial Organizatson,
8 N L R B 558 ; Matter of Borden Mills , Inc and Textile Workers Organizing Committee,
13 N. L R B 459 ; Swift d Co . v. National Labor Relations Board, 106 F. (2d) 87
(C. C A 10) ; Matter of Tea-O-Kan Flour Mills Company ( Morton Milling Company
Branch) and National Council of Grain Processors,`26 N L R B . 765, and cases therein
cited.
AMERICAN ENKA; CORPORATION 1067
lying about his age. Under the circumstances, we find, as did the
Trial Examiner, that Salley made the statements attributed to him sub-
stantially as recited above.
In the summer of 1939 the dissatisfaction of the employees with the
Committee plan of organization gradually gained ground until on
September 5, 1939, the Union was gralited its charter as Local No.
22129. During this time the opposition to outside unions by the re-
spondent's officers did not lessen. Collins, who was president of the
Union, testified that he expressed his dissatisfaction with the Com-
mittees to Gill in May or April and expressed his belief that the em-
ployees needed the American Federation of Labor.' Gill's reply was
that unions were all "rackets." In a similar conversation with Van-
derhooven, who was in charge of office management, in June 1939, the
latter stated that "Unions bursted more companies than anything in
the United States." Vanderhooven did not deny making this state-
ment. Gill denied making the remark attributed to him, but we find,
in accordance with the findings of the Trial Examiner, that he made
this statement. I
Both Moritz and Gill denied that they had ever authorized any
employee to make anti-union statements. Nevertheless, numerous
other anti-union statements were made. Shortly after issuance, of the
Union's charter in 1939, J. V. Tompkins, leading man in the pot
spinning department, after soliciting information from Collins as to
the progress of union organization, stated to him : "Well, you'll never
organize a union at Enka because the fellows wouldn't stick together";
and to Collins' reply that he thought they would, he went on to say :
"Well, just watch your step, that is, all I can tell you." In October
or November 1939, when wage increase negotiations Were being carried
on by the Committees, Jack Fullem, also a leading man in the pot
spinning department, stated to Justice, an employee under his super-
vision, "You are wound up in, your old union business again ... We
will get no raise until this union scent is blown over." - At about the
same time, Fullem was heard to say to another employee, Ray Ruth,
that he had heard from "high authority" that the respondent would
"shut down the plant for as much as 30 days and call it for repairs,
they could do that and start back with new men and let the union men
go to hell." None of these statements was denied. We find, as did the
Trial Examiner, that they occurred and that the respondent must as-
sume responsibility for the actions of its supervisory employees.14
14 Supra, footnote 13 The duties of leading men vary throughout the plant from those
similar to "red bands ," and those similar to inspectors , to those of "room leaders" in the
chemical department who are described by Gill as almost regular workers. In general their
duties are to see that the male employees correctly perform their work and carry out the
shiftmaster ' s instructions . Since even the room leader has the power to report the men
under him for infractions of rules and disregard of instructions , we find that these men
are supervisory employees.
i
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 6, 1939, during a period of increased activity at the
plant in behalf of the Union, the respondent posted on its bulletin
boards an announcement which, after reciting that it was made to
correct any misunderstanding that might still exist in the minds
of any of the employees, stated explicitly that employees have full
freedom of association, organization, and designation of representa-
tives of their own choosing for the purpose of negotiation as outlined
in the, Wagner Labor Relations Act, that the respondent, will not try
to intimidate or coerce any employee in order to influence his or her
selection of representatives, that no employees need be influenced in
such selection by any interference, intimidation, or coercion from any
other person or employee, and that no emploiee will be discriminated
against or lose his job because he refuses to belong to any labor organi-
zation.' The respondent asserts that by posting the foregoing notice
it brought home to its employees its impartiality with respect to its
employees'„ organizational activities. We find, as did the Trial Ex-
aminer, that this announcement must be considered in relation to events
preceding and following it, and that when so considered it does not
exonerate the respondent from the unfair labor practices charged in
this proceeding.
Subsequent to the 'filing of the complaint, in this proceeding, the
respondent, on March,9, 1940, issued to all employees and posted on
its bulletin boards over the typed signature of Moritz, a printed notice
addressed to the employees informing them that the Board had issued
a complaint and set a hearing for April 15, 1940, that the outcome of
the hearing could not be predicted and that if the Board should rule
for technical' or other, reasons that the complaint is justified it will
order the present plan disestablished. The notice stated that "In
fairness to its workers, the Company is willing to contest this attack
before the Board and also in the courts." It announced also an elec-
tion to be held among the respondent's employees to determine the
question "Do you wish your Company to contest the present effort to
discontinue the existing representative relations between you and your
Company?" In the election held pursuant to the notice, 1473 em-
ployees voted "Yes" in answer to the above question, and 784, "No."
The purpose of the election, according to the election notice, was defi-
nitely, intended not to be a vote for or against any particular labor
organization, but to suggest the employees' views in order to aid the
determination of the respondent's policy in connection with the pro-
ceeding. On the other hand, Gill, who was consulted by Moritz on
this problem of the respondent's policy, testified that the purpose of
the vote was "to ascertain whether we should defend the workers com-
mittees in this hearing" and that he- hoped that was what their attor-
neys were doing. However, Moritz testified that he alone had procured
AMERICAN ENKA CORPORATION 1069
the attorneys and instructed them, and that they were retained only
to defend the respondent from the unfair labor practice charge. It
is clear that the respondent was not "neutral" in its actions as regards
the Committees.
C. Conclusions
We have already found that the respondent initiated and formu-
lated the Committee plan, determined its basic structure and purpose,
and undertook complete financial maintenance which has continued to
the present time. The respondent has supported.and encouraged the
Committees and still does so; the elections were and still are held on
the respondent's time _ aiid property ; the respondent furnishes the
ballot boxes, voting booths, and the printed forms for all ballots; the
certificates of election are posted on the company bulletin boards over
the name of the company officials; the elected representatives consult
with the employees as to grievances on company time and company
property and hold their private meetings on company property; the
representatives are paid at their regular rate for all time spent in
consultation with employees and in committee meetings; and all
expense is borne by the respondent.
The respondent's contention that the support which it granted the
Committees dates only from 1933, when the code was adopted, and
embodies the result of a specific request therefore is not substantiated
by the record. After accepting it, the respondent printed the code at
its own expense 15 with the following foreword which clearly indicates
that the respondent did not consider the principles established by the
code as an innovation :
The elections of Representatives and Alternates for the Factory
Workers Committees having been conducted' since 19.9 along sub-
stantially the same principles as maintained in this Code,'it was
felt desirable to revise and permanently establish the method, of
election and issue same in a leaflet so that every employee be
familiar with its details.16
The testimony of three code committee members leads also to the
conclusion that the "new" method of conducting elections did not differ
substantially from the old.17 , It is clear that the privileges accorded
the Committees under the code were merely a continuation of the re-
"The code was also incorporated in the punted booklet of general information for
employees which was issued to all employees, particularly the new ones.
18 Italics supplied
1
17 These members testified that ballot boxes and ballots were used previously, and were
supplied by the respondent, that supervisory employees were not permitted to vote even
prior to the adoption of the code, that elections and meetings were previously held on
company time and pi operty ; and that the respondent had furnished bulletins and posters
concerning the elections and had permitted them to be posted on its bulletin boards. The
fourth committee member did not testity.
1070 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
spondent's already established policy of aid to the Committees. The
respondent's further contention that the employees themselves deter-
mined the form of the Committee plan is offset by the fact that, in
practice, no provision or amendment was taken to be effective until it
had been submitted to and accepted by the respondent.
In structure and in operation the Committee plan is merely a
part of the management organization adopted by the respondent for
the purpose of handling its relations with its large body of employees.
The Committees serve primarily as a means for presentation of em-
ployee grievances to the respondent, ignoring the broader aspects of
self-organization and collective bargaining. There is no provision for
the general group of employees to meet and discuss in a body matters
affecting wages,. hours, and other working conditions, or for group
decision upon a course of action, or for group instruction to repre-
sentatives. The only participation by the employees in the Coin-
mittees lies in elections of representatives, done without reference to
platforms or issues. Their right to participate to this extent results
from their employment rather than from any act of affiliation with
the Committees. The record establishes that the Committees serve
as an agent of the respondent and as a !means for airing employee
grievances rather than securing genuine collective bargaining. The
respondent, by distributing to all employees a booklet of general
information which describes the Committees in detail but mentions
no other labor organization, has indicated its preference for the
Committees and its desire to continue them in effect, and has thereby
prevented' its employees from engaging effectively in concerted activi-
ties for their mutual aid and welfare.
Meanwhile, the respondent's antagonism to outside unions has
become a bulwark to the perpetuation of the Committees by its
restraining effects upon independent concerted action. Evidence of
such hostility is to be found in the respondent's actions in connection
with the attempted organization by Local No. 2113, in the instructions
gii,en the plant policemen, and in the statements of supervisory em-
ployees in 1936 in regard to the T. W. 0. C., of Employment Man-
ager. Salley in 1937 and 1938, and of Gill, Vanderhooven, and the
others enumerated above during the organization of the petitioning
union in 1939.
We find, as did the Trial Examiner; that the respondent dominated
and interfered with the formation of the Committees, and that at all
times thereafter it has dominated and interfered with their adminis-
tration and contributed financial and other support to them; 18 and that
is Matter of International Harvester Company and Local Union No 57, International
Union, United Automobile Workers of America, 2 N L R B 310; Matter of H. E . Fletcher
Co. and Gi anite Cutters' International Association of America, 5 N L. R B . 729; Matter
of United States Potash Company and International Union of Mine , Mill, and Smelter
AMERICAN ENKA CORPORATION 1071
by engaging in these' activities after the effective date of the Act, July
5, 1935, and by the anti-union statements and activities of its super-
visory employees, Gill, Vanderhooven, Salley, Conder, Robinson,
Tompkins, and Fullem, as set forth above, it has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III,above, occurring in connection with'the operations of the respond-
ent described in Section. I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
conmerce and the free flow of commerce. -
V. THE REMEDY
We have found that the respondent has committed certain unfair
labor practices. We shall therefore order it to cease and desist
therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
We have found that the respondent dominated and interfered with
the formation of the Committees, and that at all times thereafter it
has dominated and interfered with their administration and con-
tributed financial and other support to them. We shall therefore
order the respondent to withdraw recognition from the Committees
as a collective bargaining representative for any of its employees
and to disestablish it as such representative.
Upon the basis of the foregoing findings of fact and .the entire
record in the case, the Board makes the following : -
CONCLUSIONS OF LAW
1. Textile Workers Union No. 22129 and the Factory Workers
Committees are labor organizations within the meaning of Section 2
(5) of the Act.
2. By dominating and interfering with the administration of the
Factory Workers Committees and by contributing financial and other
support to them, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (2) of the
Act.
Workers, Carlsbad Potash Workers Union, Local 415, 10 N L R B. 1248 ; Matter of Servel,
Inc and United Electrical, Radio d Machine Workers of America, Local No 1002, 11 N. L.
R. B 1205; Matter of The Western Union Telegraph Company, a Corporation and Ameri-
can Communications Association , 17 N. L R B. 34, enf'd as mod , Western Union Telegraph
Co v N L R B , decided August 9, 1940 (C. C A 2) , Matter of Standard Oil Company
(Indiana) and Oil Wo?kers International Union , 25 N. L . It. B. 1190.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is etigaging-in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and the conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, American Enka Corporation, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of the Factory Workers Committees or with the formation
or administration of any other labor organization of its employees,
and from contributing financial or other support to the Factory
Workers Committees or any other labor organization of its
employees ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the' exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain,, collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining and other
mutual aid and protection as guaranteed in•Section 7 of the Act;
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Withdraw all recognition from the Factory Workers -Com-
mittees as a representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
wages, rates of. pay, hours of employment, or other conditions of em-
ployment, and completely disestablish the Factory Workers Com-
mittees as such representative;
(b) Post immediately in conspicuous places throughout its'plant,
and maintain for a period of at least, sixty (60) consecutive days
from the date of posting, notices to its employees stating (1) that the
respondent will not engage in the conduct from which it is ordered
to cease and-desist in paragraphs (1) (a) and (b) of this Order;
and (2) that the respondent will take the affirmative action set forth
in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.