Industrial Rayon Corp.

National Labor Relations Board - Board Decisions

Jun 14, 1938

7 N.L.R.B. 878 (N.L.R.B. 1938)

In the Matter Of INDUSTRIAL RAYON CORPORATION, A DELAWARE COR-
PORATION and TEXTILE WORKERS ORGANIZING COMMITTEE
In the Matter of INDUSTRIAL RAYON CORPORATION, A DELAWARE COR-
PORATION, and INDUSTRIAL RAYON CORPORATION OF VIRGINIA, A
VIRGINIA CORPORATION and TEXTILE WORKERS ORGANIZING COM-
MITTEE
Cases Nos. C-188 and R-156, respectively.Decided June 14, 1938
Textile Industry-Rayon Manufacturing Industry-Interference, Restraint,
and Coercion-Company-Dominated Union: domination of and interference with
administration ; financial and other support ; established with active assistance
of employer prior to effective date of Act ; use of, by employer, as bulwark
against outside unionization ; disestablished, as agency for collective bargain-
ing-Check-Off-Investigation of Representatives: controversy concerning repre-
sentation of employees : controversy concerning appropriate unit ; majority status
disputed by employer; employer's refusal to grant exclusive recognition of
union-Strike-Units Appropriate for Collective Bargaining: all employees in
each plant, except supervisory, clerical, and salaried employees; separate unit
for each of two plants; geographical differences; history of separate negotia-
tions; wage differentials; dissimilarity in operations-Certification of Repre-
sentatives: at one plant, following election-Prior Election: at one plant, voided,
due to employer interference-Election Ordered: time to be set in future when
effects of unfair labor practices have been dissipated.
Mr. Harry Lodish, Mr. Philip Levy, and Mr. Peter -Di Leone, for
the Board.
Tolles, Hogsett c Ginn, by Mr. Grover Higgins, Mr. W. T. Kinder,
Mr. Thomas M. Harman, and Mr. Leslie Nichols, of Cleveland, Ohio,
for Industrial Rayon Corporation and Industrial Rayon Corpora-
tion of Virginia.
Mr. Arthur A. Miller, of Cleveland, Ohio, and Mr. Arthur P.
McNulty, of New York City, for the T. W. O. C.
Mr. J. C. Calhoun, of Cleveland, Ohio, for the Association.
Mr. Frederick P. Mett and Mr. Lewis M. Gill, of counsel to the
Board.
878
DECISIONS AND ORDEI{S
DECISION
ORDER
CERTIFICATION OF REPRESENTATIVES
AND
DIRECTION OF ELECTION
879
STATEMENT OF THE CASE
Upon charges duly filed by Textile Workers Organizing Com-
mittee, herein called the T. W. O. C., the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Eighth Region (Cleveland, Ohio), issued its complaint dated May
19, 1937, against Industrial Rayon Corporation, Cleveland, Ohio,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce 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. The complaint alleged in substance that the
respondent, prior to July 5, 1935, had caused the formation of the
Employees Association of Industrial Rayon Corporation, a labor
organization of its employees, herein called the Association, and had
at all times since July 5, 1935, dominated and interfered with the
administration of and contributed financial and other support to that
organization. The complaint and accompanying notice of hearing
were duly served upon the respondent.
On May 25, 1937, the respondent filed an answer to the complaint,
denying that it had engaged in or was engaging in the unfair labor
practices as alleged.
Pursuant to the notice, a hearing was held at Cleveland, Ohio,
from May 27 through June 10, 1937, before William R. Ringer, the
Trial Examiner duly designated by the Board. The Board, the re-
spondent, and the T. W. O. C. were represented by counsel and par-
ticipated in the hearing. Counsel for the Association was present
at the hearing but did not participate, although advised that he
would be allowed to intervene on behalf of his client.' Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
produce evidence bearing upon the issues was afforded all parties.
At the close of the Board's case and again at the close of the
hearing, the respondent moved that the case be dismissed on the
ground that the evidence adduced did not substantiate the allega-
' After the conclusion of the hearing , however, the Association transmitted a brief to
the Board
880 NATIONAL LABOR RELATIONS BOARD
tions in the complaint. The Trial Examiner denied the motions, and
we affirm his rulings. During the course of the hearing, the Trial
Examiner made numerous other rulings on motions and on objec-
tions to the admission, of evidence. We have reviewed the. rulings
and find that no prejudicial error was committed. The rulings are
hereby affirmed.
On June 25, 1937, the Board, acting pursuant to Article II, Sec-
tion 37, of National Labor Relations Board Rules and Regulations-
'Series 1, as amended, ordered the proceedings in the case transferred
to the Board. Pursuant to notice duly served upon the respondent,
the T. W. O. C., and the Association, oral argument was had before
the Board at Washington, D. C., on August 5, 1937. The respondent
and the T. W. O. C. participated in the oral argument, filed exten-
sive briefs, and, subsequently, reply briefs. The Association did
not appear for the oral argument, but submitted a brief.
On August 12, 1937, the T. W. O. C. filed with the Board a petition
requesting permission to include in the record the sworn testimony
of one Lawrence Martin, president of the Association, given by him
on June 2, 1937, in the Court of Common Pleas of Cuyahoga County,
'Ohio, in the case of Industrial Rayon Corporation, Plaintiff, vs.
Joseph R. White, et al., Defendants. A transcript of the testimony
of Martin accompanied the petition, a copy of which was served upon
the respondent by the T. W. O. C. No objection to the inclusion of
such testimony has been made by the respondent. The testimony
appears to be relevant, and it is hereby admitted and made a part of
the record in this case.
, The T. W. O. C. having previously requested permission to file
with the Board a petition under Section 9 (c) of the Act, the Board
on June 9, 1937, granted such permission. On the same day, the
T. W. O. C. filed with the Board at Washington, D. C., a petition
alleging that a question affecting commerce had arisen concerning
-the representation of employees of the respondent and employees of
Industrial Rayon Corporation of Virginia, Covington, Virginia,
herein called the Virginia Corporation, and requesting the Board to
conduct an investigation pursuant to Section 9 (c) of the Act and
to certify representatives for the purposes of collective bargaining.2
On June 10, 1937, the Board, acting pursuant to Section 9 (c) of
the Act and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 1, as amended, ordered that
2 On May 17 , 1937 , the Association filed with the Regional Director for the Eighth
Region (Cleveland , Ohio) a petition for investigation and certification of representatives.
-Charges Involving the validity of the Association having previously been filed by the
-T W. 0 C. the Board took no action on the Association petition pending the determina-
tion of the T. W O. C. charges On August 11, 1937, the Association requested permis-
sion to withdraw its petition . Permission was granted by the Board on September 2, 1937.
DECISIONS AND ORDERS 881
an investigation be conducted and that an appropriate hearing be
held. Copies of the T. W. O. C. petition and a notice of hearing
thereon were duly served on the respondent, the Virginia Corpora-
tion, the T. W. O. C., and the Association. The respondent, the
Virginia Corporation, and the Association thereafter filed individual
answers to the petition. Pursuant to the notice, a hearing was held
in Washington, D. C., on June 18 and 19, 1937, before William
Seagle, the Trial Examiner duly designated by the Board. The
Board, the respondent, the Virginia Corporation, the T. W. O. C.,
and the Association were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross..
examine witnesses, and to produce evidence bearing upon the issues
was afforded all parties. During the course of the hearing, the Trial
Examiner made various rulings on motions and objections to the
admission of evidence. We have reviewed the rulings and find that
no prejudicial error was committed. The rulings are hereby
affirmed.
Thereafter each of the parties filed an extensive brief with the
Board. On July 2, 1937, pursuant to notice duly served on the
parties, a hearing for the purpose of oral argument was held before
the Board in Washington, D. C. The respondent, the Virginia
Corporation, and the T. W. O. C. were represented by counsel,
but the parties elected to waive oral argument and stand on their
briefs. The Association did not appear.
The case based upon the complaint having previously been trans-
ferred to it, the Board on July 9, 1937, acting pursuant to its afore-
mentioned Rules and Regulations, ordered that case consolidated for
all purposes with the case based upon the petition. Having pre-
viously examined the records in both cases, the Board, acting pur-
-suant to Article III, Section 8, of said Rules and Regulations, on
the same day issued a Direction of Elections,3 in which it found
that a question affecting commerce had arisen concerning the repre-
sentation of all of the employees of the respondent except super-
visory, clerical, and salaried employees, that a question affecting
commerce had also arisen concerning the representation of all of
the employees of the Virginia Corporation except supervisory,
clerical, and salaried employees, and that each of these groups as to
which questions concerning representation had arisen constituted
a. unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act. The Board also found
that the Association "is not a bona fide labor organization such as
is entitled to a place on the ballot in an election ordered by the
33 N. L R.B S.
882 NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board." 4 For the purpose of expediting
the election and thus to insure to employees of the respondent and:
the Virginia Corporation the full benefit of their right to collective
bargaining as soon as possible, the Board directed the elections with-
out at the same time issuing a decision embodying complete find-
ings of fact and conclusions of law. The Board designated the
Regional Director for the Eighth Region as its agent to conduct
the ordered elections. Subsequently both the respondent and the
Association filed exceptions to the Direction of Elections, protest-
ing the exclusion of the Association from the ballot. We find no
merit in such exceptions, in view of the fact that the administra-
tion of the Association has been dominated and interfered with by
the respondent and the Association has received support from the
respondent, as we find hereinafter.
Pursuant to the Board's Direction of Elections, the elections by-
secret ballot were conducted on July 17, 1937, by the Acting Regional'
Director for the Eighth Region. Thereafter the Acting Regional
Director issued and served upon the parties his Intermediate Report
on the results of the elections. -
As to the balloting among the employees of the Virginia Corpora-
tion and its results, the Acting Regional Director reported as
follows : -
Total number of employees eligible to vote________________ 1, 160
Total number of ballots counted___________________________ 1,098
Total number of votes for the T. W. O. C__________________ 639
Total number of votes against the T. W. O. C______________ 431
Total number of blank ballots____________________________ 1
Total number of void ballots______________________________ 4
Total number of challenged ballots________________________ 23
As to the balloting among the employees of the respondent and'
its results, the Acting Regional Director reported as follows :
Total number of employees eligible to vote________________ 1, 021
Total number of ballots counted__________________________ 961
Total number of votes for the T. W. O. C__________________ 423
Total number of votes against the T. W. 0 C______________ 469
Total number of blank ballots____________________________ 3
Total number of void ballots______________________________ 4
Total number of challenged ballots________________________ 62
Objections to the conduct of the election among the employees of-
the respondent and to the Intermediate Report of the Acting Re-
gional Director thereon were thereafter filed with the Board by the-
T. W. O. C. An answer to such objections was subsequently filed by
'Detailed findings and conclusions concerning the status of the Association are set
forth hereinafter.
DECISIONS AND ORDERS 883
the respondent. No objections to the election conducted among the
employees of the Virginia Corporation were filed by any of the
parties.
Pursuant to notice duly served on all the parties, a hearing on the
objections of the T. W. O. C. was held at Cleveland, Ohio, on August
19, 20, and 21, 1937, before Tilford E. Dudley, the Trial Examiner
duly designated by, the Board. The Board, the respondent, and the
T. W. O. C. were represented by counsel and participated in the
hearing. Although notified of the hearing, the Association did not
participate; however, certain officers of the Association testified at
the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, tnd to introduce evidence bearing upon the issues
was afforded all parties. During the course of the hearing, the Trial
Examiner made various rulings on motions and objections to the
.admission of evidence. We have reviewed his rulings and find that
no prejudicial error was committed. The rulings are hereby af-
firmed. After the hearing, certain affidavits from the former Re-
gional Director for the Eighth Region and from the Acting Regional
Director for the same region were transmitted to the Board by the
respondent for incorporation in the record. Copies thereof were duly
brought to the attention of the T. W. O. C. No objections having
been made, the affidavits are hereby admitted into evidence and made
a part of the record in this proceeding.
After an examination of the record concerning the objections to
the election, the Board ordered a further hearing for the purpose of
taking further testimony thereon. Pursuant to notice duly served
on the parties, another hearing was held at Cleveland, Ohio, on
December 2, 1937, before Madison Hill, the Trial Examiner duly
designated by the Board. As was the case at the first hearing on
the objections, the Board, the T. W. O. C., and the respondent were
-represented by counsel and participated in the hearing; the Asso-
ciation, although notified, did not participate, but its counsel and
-certain of its officers were present and testified. Full opportunity
to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues was afforded all parties. We
have examined the rulings of the Trial Examiner on motions and
objections to the admission of evidence, and find that no prejudicial
,error was committed. The rulings are hereby affirmed.
We have fully considered the briefs and memoranda submitted by
the parties from time to time during this proceeding.
Upon the entire record in this proceeding, the Board makes the
:following :
884 NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE CORPORATIONS
The respondent is a Delaware corporation, having its principal
office and place of business in Cleveland, Ohio. It is engaged in
the manufacture of rayon yarn and in the manufacture, sale, and
distribution of tubular knitted rayon fabric.' The respondent
.wholly owns and controls the Virginia Corporation and the Rayon
Machinery Corporation, an Ohio corporation which manufactures
machinery used by the respondent.
In its operations the respondent uses a large quantity of raw ma-
terials such as wood pulp, caustic soda, sulphuric acid, carbon bi-
sulphide, and salt cake. All of such raw materials except sulphuric
acid are shipped to its Cleveland plant from points outside the State
of Ohio. The respondent purchases substantially all of the rayon
yarn manufactured by the Virginia Corporation, and sells both this
yarn and its own rayon fabric to manufacturers throughout the
United States. Between 85 and 95 per cent of the rayon fabric is
shipped to customers outside the State of Ohio, and all the rayon
yarn purchased from the Virginia Corporation is shipped to cus-
tomers outside the State of Virginia. The annual productive capac-
ity of the respondent is approximately 7,000,000 pounds of rayon
yarn and 10,000,000 pounds of rayon fabric.
The Virginia Corporation is a corporation existing under the laws
of the State of Virginia, with its principal office and place of busi-
ness in Covington, Virginia. As stated above, it manufactures rayon
yarn, substantially all of which is sold to the respondent. Its' raw
materials include wood pulp, coal, caustic soda, carbon bisulphide,
sulphuric acid, and zinc sulphate. All of such raw materials except
caustic soda and sulphuric acid are shipped to its Covington plant
from outside the State of Virginia. As indicated above, all the
rayon yarn sold by it to the respondent is distributed to customers
outside the State of Virginia. The Virginia Corporation has an
annual productive capacity of approximately 10,000,000 pounds of
rayon yarn.
II. THE ORGANIZATIONS INVOLVED
The Textile Workers Organizing Committee is a labor organiza-
tion affiliated with the Committee for Industrial Organization. It
admits to membership all of the employees of the respondent and the
Virginia Corporation , except supervisory , clerical, and salaried
employees.
5 Substantially all the rayon yarn manufactured by the respondent is used in the pro-
duction of tubular knitted rayon fabric ; almost all of the yarn manufactured by the
Virginia Corporation is sold without being converted into fabric.
DECISIONS AND ORDERS 885
Prior to the spring of 1937 the United Textile Workers of America,
a labor organization then affiliated with the American Federation
of Labor, had two locals in the plants here involved. In the latter
part of March or early part of April 1937, T. W. O. C. membership
cards were signed by the members of the two locals, Local No. 2096•
at the respondent's Cleveland plant, and Local No. 2214 at the plant
of the Virginia Corporation.
The Employees Association is an unaffiliated labor organization
local to the Cleveland plant of the respondent. It admits to active
membership all but clerks and salaried and supervisory employees,
and admits these latter classifications to inactive membership.
III. THE UNFAIR LABOR PRACTICES
On January 10, 1934, the United Textile Workers of America
established its Local No. 2096 at the plant of the respondent. The
organizational drive of Local 2096, which began. immediately, soon
ran afoul of a counter movement in the formation of the Association.
The circumstances surrounding the birth of the Association, although
comprising occurrences previous to the passage of the Act, warrant
attention here as significant background against which the events
after the passage of the Act are to be adjudged.
Between January 17 and 19, 1934, certain groups of employees
called on Kline, vice president of the respondent. It appears that
these workers were seeking Kline's approval of a project for an inside
organization in the plant. They informed him that they regarded
labor unions as "rackets," and that while the workers had no griev-
ances against the respondent they desired to form the inside organi-
zation "to offset outside interference." However, they hastened to
add "that if the company was against a movement of this kind to
please tell them so and they would forget about the whole matter."
One of the spokesmen assured Kline that "it was up to the Com-
pany to be for it in order to protect itself against outside interfer-
ence." Kline informed the men that the respondent intended to abide
by Section 7 (a) of the National Industrial Recovery Act, but he did
not conceal his approval of their project. He told one group that he
felt "a properly drawn-up plan would be not only for the benefit of
the employees but also for the good of the company," and added that
that he was "gratified to know that the employees themselves were
thinking along this line." To another group he stated that "the
Company would co-operate in the installation of a plan which would
have teeth in it." These statements are taken from memoranda pre-
pared by Kline himself.
On the afternoon of January 19, 1934, Kline called a meeting, in
a plant office during working hours, of all the employees who had
886 NATIONAL LABOR RELATIONS BOARD
previously approached him on this subject. Kline began by averring
that in view of Section 7 (a), he was unable to participate in any
way in the formation of the organization. However, this disability
did not trouble Kline for long. He remained at the conference and
participated fully.
Lawrence Martin, one of the employees present, asked Kline for
advice as to the course of procedure they should adopt in getting
the organization under way. Kline's own memorandum of the con-
ference indicates the following response on his part :
I told them that I thot that that was a matter that they
should properly work out for themselves, but did suggest that if
I were doing the job the first thing that I would do would be to
circulate a petition or a ballot, preferably the former, to all
employees of the company in order to determine whether or not
the employees generally desired to become a part of the plan
which they had in mind . . . then it would be proper for
them to either elect or appoint a committee to decide upon what
kind of a plan they wanted, and if they desired to have a more
or less formal plan, that the committee should then prepare a
constitution and by-laws.
Kline assured the group that they could call upon any of the re-
spondent's executives for assistance in getting the organization under
way, although he added that they should treat any advice so secured
as mere suggestions. A request by the employees that they be per-
mitted to circulate a petition during working hours was granted.
Shortly after this conference, the respondent mimeographed the
petition for circulation, although, according to Kline's testimony, the
Association later paid the respondent for the expenses of preparation.
The petition was circulated during working hours, and by January
24 the signatures of a considerable number of employees had been
obtained in favor of an inside labor organization. Martin, along
with certain other employees, presented the petition to Kline at that
time'and advised him that the employees desired to conduct an elec-
tion to select representatives who were to draw up a constitution and
bylaws. Kline offered Martin the services of a firm of accountants
to aid him and the others in conducting the election; the offer was
not accepted. The organizational group conducted the election shortly
thereafter. It was held in the plant, during working hours. There
is no evidence that those conducting the election suffered any loss of
pay in so doing. After the election, a notice of the results was pre-
pared by someone in the organizational group and submitted to Kline
for his approval. Kline had his secretary type copies of the notice,
which were posted on the respondent's bulletin boards in the plant.
DECISIONS AND ORDERS 887
Upon the election of the constitutional representatives, the "coop-
eration" of the respondent increased in intensity. The first meeting
of these representatives took place on January 31, 1934, in Kline's
office, again during working hours. Kline offered them the services
of any reputable law firm which was acceptable to the respondent,
for the purpose of assisting them in drafting their constitution and
bylaws. The offer was not accepted. It may be pointed out here that
even rejected offers of assistance served to indicate clearly the re-
spondent's- open preference for the inside organization. Kline then
suggested that W. L. Allen, a consulting engineer and one time De-
puty Administrator of the Rayon Code Authority, would be a valu-
able consultant on the form of organization for them to adopt. Kline
and Grover Higgins, the respondent's attorney, promptly arranged
a meeting between Allen and the representatives for February 9,
1934. Allen appeared on the scene at the appointed day, spent sev-
eral hours conferring with officials of the respondent (but none con-
ferring with employees), and finally addressed the representatives at
a 4-hour meeting called by the respondent in a plant office during
working hours. He was introduced by Kline. Allen's recommenda-
tions, later reduced to writing and sent both to the representatives
• and to Kline, included a suggestion that 25 cents per month should
be adequate dues. He also admonished the representatives against
"domination of any outside influence whose motives might be ques-
tioned, either by the employees or the management." He pointed out
that "the management can not resent any reasonable request of the
employees but may deem it unwise to discuss the intimate details of
their business with any outsider who could carry that information to
a competitor to the detriment of the company and the employees as
well." He suggested that the Association rent office space from the
respondent, on company property. Finally, after making detailed
suggestions as to the mechanical set-up of the organization, he pointed
out that his plan did not "permit the building up of a powerful
political machine by an over-ambitious individual," and precluded
"the assumption of obligations to employees in other companies or
other industries." These ill-concealed indications of hostility toward
"outside" unions were clearly sufficient to nullify any effect that
another statement in the letter-to the effect that he was not passing
on the question of a representation plan versus a trade union-might
have had. As a matter of fact, Frank Kanda, an employee present
when Allen spoke, testified that Allen's talk seemed directed against
outside unions, as compared to so-called company. unions. Kline
wrote to Allen shortly thereafter, saying that he thought Allen's let-
ter "a masterpiece." A constitution and bylaws along the suggested
lines were thereafter drawn up by the representatives, assisted by
106791-38-vol. vit-57
'888 NATIONAL LABOR RELATIONS BOARD
certain officials of the respondent. On February 18, 1934, a draft
of the proposed documents was presented to Kline for his suggestions
and approval. Kline recommended a decrease in the proposed dues
(which had been set at more than the 25 cents a month recommended
by Allen) and the removal of a provision that the Association pay
out sick benefits, in view of the great financial burden involved in
such a program. He added that the respondent had for sometime
been contemplating the installation of a health-benefit fund for its
employees, and suggested that no doubt such a fund could be arranged
between the new organization and the respondent, once the former
became established.
The constitutional representatives revised the draft constitution
and bylaws in accordance with Kline's suggestions, membership dues
being set at, 25 cents per month for both men and women, and the
provision for sickness or disability benefits being deleted. The next
step was an election among the employees on the adoption of the
constitution and bylaws. The respondent engaged a firm of account-
ants to conduct the election for this purpose. While the accountants
were instructed by Kline to take orders from the employees' group
alone, the financial assistance rendered the new venture by this device
was not insubstantial. For their services in connection with the elec-
tion the accountants were paid nearly $1,000 by the respondent.
It is interesting to note that the ballots used contained spaces for the
pay-roll numbers of the employees voting. The voting resulted in
adoption of the constitution and bylaws, and the Employees Asso-
ciation of Industrial Rayon Corporation formally came into exist-
ence. At the same election, permanent representatives, one from
each shift in each department, were chosen. Shortly thereafter these
representatives met and elected officers and committee members.
A vigorous organizational drive immediately took place. Copies
of the constitution and bylaws were freely distributed through the
plant. Members of the Association solicited for membership during
working hours without loss of pay, and upon occasion were paid
overtime by the respondent for solicitation activities after regular
working hours. The respondent made available its bulletin boards
throughout the plant for Association notices, which were submitted
to Kline for approval before posting. Within a month the Asso-
ciation membership had become substantial. During this period,
Association meetings were held in various offices in the respondent's
plant with the consent of and without charge by the respondent.
Representatives attending such meetings during working hours lost
no pay in so doing. The Association soon rented a regular office in
the plant, paying the respondent $6.50 a month therefor. This
arrangement continues to the present day.
DECISIONS AND ORDERS 889
From the events related above, it is abundantly clear that the
respondent participated in the formation of the Association, guided
it on its way, and lent it comfort and support." The Association,
from the start, was a favored organization standing athwart the
path of unionization of the respondent's employees by "outsiders."
The Association has never been financially able to carry on normal
union activities. We have noted that both Kline and Allen recom-
mended the low dues of 25 cents per month. Under a sickness and
disability benefit plan, initiated by the respondent in 1934, the
respondent deducted these dues from the pay checks of Association
members; of the 25 cents, there was placed in a health-benefit fund,
created by the plan, 20 cents for each male Association member, 15
cents for each female. This left the Association with 10 cents a
month from each female member and 5 cents from each male with
which to operate. The regular Association expenses , including $45
a month in salaries to its officers, $6.50 a month rental for office space
in the respondent's plant, and certain other payments to representa-
tives for attending meetings, ate up this negligible amount, leaving
the treasury in a constant state of depletion. In the spring of 1935,
heedful of this condition, the respondent agreed to decrease the Asso-
ciation contribution of the health-benefit fund to 10 cents per month
per member, regardless of sex. This necessitated an increase in the
respondent's contributions to the plan.7 Still, with but 15 cents a
month coming in from each member, the Association remained fis-
cally impotent. This financial arrangement, in the establishment of
which the respondent played such a significant role, remains in effect
today. We shall note presently that when the first item of substan-
tial expense was incurred by the Association, the Association was
unable to pay for it, and the respondent footed the bill.
On May 20, 1935, Local 2096 called a strike against the respondent,
and operations ceased. The strike, called because of the break-down
of negotiations between the respondent and Local 2096, was marked
by mass picketing, and it appears that a number of Association
From the outset , Local 2096 accused the Association of being the creature of the
respondent . During the latter part of 1934, Local 2096 brought charges against the
respondent before the Textile Labor Relations Board, alleging violation of Section 7 (a)
of the National Industrial Recovery Act. On April 13, 1935, after a hearing on the
matter, the Textile Labor Relations Board issued a decision dismissing certain charges
of discrimination against members of Local 2096 and finding , as to the Association, "that
while the Company undoubtedly did assist to some extent in the formation of a company
union known as the Employees Association of Industrial Rayon Corporation, it has not
maintained any supervision of it and it is being managed independently by the employees
themselves ." The respondent was warned against interference with self -organization of
its employees through assisting the Employees Association in any way. The present pro-
ceeding is , of course, based on a different statute, and the events prior to the passage
of the present Act constitute mere background for our purposes . Our findings as to
whether the respondent violated the Act are based on its actions subsequent to July 5,
1935, the date of passage of the Act.
7 The respondent furnishes whatever amounts are needed, over and above the Associa-
tion contributions , to make benefit payments under the plan.
890 NATIONAL LABOR RELATIONS BOARD
members and other employees were unable to leave the plant for a
period because of the picket lines. In this situation, the close tie
between the respondent and the Association was thrown into plain
relief. - The respondent, not content with seeking an injunction
against the strikers, agreed to supply the Association with counsel
so that it, too, could seek an injunction. The respondent secured as
counsel for the Association one Paul Lamb, who not only secured
an injunction but also prosecuted several contempt proceedings
against members and officers of Local 2096, on behalf of the Associa-
tion. For his services between May 20 and July 29, 1935, the re-
spondent paid him approximately $2,500. This has never been repaid
by the Association, and indeed the payment was not made as a loan,
but as an outright. contribution. This unquestionable evidence of sup-
port to the Association was sought to be explained on the ground
that the Association members needed protection; the respondent did
not point out wherein the protection afforded by its own injunction
proceeding was inadequate. Be that as it may, the Act in clear
terms prohibits financial or other support to a labor organization, and
attempted justifications on the ground of necessity cannot absolve
an open violation of the Act's provisions.
This retention of counsel had a milder counterpart at a later
date. On May 6, 1937, Lawrence Martin, president of the Associa-
tion, feeling that the Association was "falling apart," went to Kline
seeking advice on a course of procedure for the Association in view
of the current campaign of the T. W. O. C. (successor to Local 2096)
to organize the respondent's employees. It appears that Kline had
confided in the Association that bargaining conferences had been re-
quested of the respondent by Joseph White, local field director
of the T. W. O. C. Kline refrained from making detailed sug-
gestions to Martin, but readily saw to it that he secured guidance
through another source. He called one Disbro, a local manufacturer,
on the telephone and arranged an appointment for Martin at Disbro's
home for that evening. Kline went to Disbro's home with Martin,
introduced him, and left. Disbro, after hearing Martin's request for
advice, recommended that he get in touch with one Joseph Calhoun,
whom he described as an attorney "that is not connected with labor
or management of any kind." Disbro telephoned Calhoun, who came
over and was introduced to Martin. As a result of this meeting,
Calhoun was retained by the Association as its counsel, with a rather
vague understanding that he would be paid in monthly installments
for whatever services he might render.8
8In May 1937 the Association filed a petition seeking certification as exclusive bargain-
ing agency for the respondent 's employees This petition was prepared by Calhoun
and was later withdrawn . Calhoun's subsequent activities on behalf of the Association
will be discussed at a later point in this Decision.
DECISIONS AND ORDERS 891
On May 14, 1934, a request by Local 2096 that it be allowed use
of the respondent's bulletin boards was denied by Kline. In re-
fusing the use of company bulletin boards to Local 2096, while at
the same time, permitting such use by the Association, the respondent
was revealing a clear favoritism. It is true that this occurred before
the passage of the Act, and that the respondent in fact subsequently
adopted a policy of allowing neither organization to use its bulletin
boards; nevertheless, this open indication of company preference for
the Association is significant background against which to adjudge
the events occurring after the passage of the Act.
We now turn to a consideration of the course of dealings between
the respondent and the Association. There were introduced into
evidence the respondent's memoranda of these conferences. It is
well to keep in mind that these records were kept by the respondent
itself. Most of them were prepared by Carrier, the respondent's
plant superintendent; some were prepared by Kline himself.
A careful study of the course of dealings over a period of more
than 3 years indicates clearly that the Association has been, rather
than a truly independent bargaining agency, a company bulwark
against "outside" unionization.
On September 11, 1934, the memorandum of the meeting includes
the following :
At this meeting Mr. Kline read to the Negotiating Commit-
tee the demands of Local No. 2096. He gave them verbatim
the entire conversation of the preceding day's meeting. He then
asked them whether they felt that the Company was justified in
its stand and whether in the event of a walkout the employees
represented by the Association would wish the Management to
close the plant down or continue its operation.
Mr. Moore, for the Employees' Association,, assured the Man-
agement that the Association heartily endorsed their stand, and
specifically requested that the Management continue operations
as usual, in view of the fact that at least 1200 employees so
desired.
On September 13, 1934, Moore, then president of the Association;
addressed to Kline a letter informing him that the Association had
formed a "vigilance committee," which would have "direct charge
of a group of picked men whose duty it will be to advise members of
the Employees' Association as to the methods to pursue in the event
of a strike." Kline was urged to get in touch with one of the men
on this committee in the event that "any serious labor trouble arises."
At a meeting on April 10, 1935, Richard Gilpin, then president
of the Association, "stated that he was very much concerned for the
892 NATIONAL LABOR RELATIONS BOARD
security of the Employees' Association as regards membership. He
felt that the rank and file would be very much dissatisfied with the
results of the negotiations and that many members would drop out."
After Kline explained at some length the management's position on
a requested wage increase, the following reaction was noted :
Messrs. Martin, Gilpin, and Moore expressed the willingness
of the Employees' Association officers and representatives to sell
to their membership the reasonableness of the Management's po-
sition relative to a wage increase and the other requests.
The memorandum of a conference on November 8, 1935, prepared
by Plant Superintendent Carrier, is particularly interesting. It
appears that one Reidy, Association representative for the power-
house, had previously presented certain grievances relating to that
department, and at this meeting it developed that the management
had made no decision on the matter. Carrier's memorandum to
Kline reads in part as follows :
Mr. Reidy stated that he felt that the employees of the power
house would withdraw from the Employees' Association unless
they had some proof soon that the Association could secure them
reasonable representation with the Management on their
problems.
The device of appealing for action on the ground that the Asso-
ciation membership was in danger of 'depletion has been a familiar
Association technique; in this instance, at least, it appeared to strike
a responsive chord in Carrier, who pointed out further in his
memorandum :
This matter has apparently reached a point where serious'
consideration should be given to the whole matter as soon as
possible, and a decision rendered.
The meeting of April 23, 1936, is highly significant. H. S. Rivitz,
president of the respondent, was present this time. Carrier's memo-
randum reveals a striking picture of the relationship between the
Association and the respondent. The tone of the meeting may best
be indicated by quoting excerpts from Carrier's notes :
Mr. Martin (then president of the Association) stated that
the meeting had been requested because of the unrest produced by
Local 2096 in their efforts to reorganize. . . . Mr. Martin stated
that it was felt that even if a small increase was granted at this
time it would not only be very helpful in meeting increased
living costs, but would tend to offset the efforts of the outside
union to produce discord. He called attention to the loyalty of
DECISIONS AND ORDERS 893
the Association, particularly during the period of the strike, and
this past winter's operations under schedules which, have been
speeded up, and under curtailed hours of labor.
Rivitz then pointed out at length company reasons for not giving
an increase, and stated that in the event of another strike closing
the plant, the respondent would never resume operations in Cleve-,
land. As usual, the Association representatives agreed to undertake
the job of selling the management's viewpoint to the employees:
During a general discussion Mr. Rivitz particularly stressed
the necessity, in view of Mr. Martin's assertion that the Em-
ployees' Association had shown their loyalty and interest in the
company's welfare so completely, of in some manner passing
along to the rank and file of the Association the facts given
them in the meeting. He suggested that they hold a general
meeting in the cafeteria for this purpose.
Mr. Carrier . . . suggested that as a first measure, in view
of the fact that the general Employees' Association meeting was
being held on Monday, April 28, at which at least thirty repre-
sentatives would be present, this could be addressed by Mr.
Kline to very good advantage, and that after this possibly
smaller meetings of the rank and file could be held with talks
by Messrs. Sanborn and Carrier along the same lines.
Mr. Rivitz seemed to feel that this' was all right as far as it
went, but that the Association should take some steps to hold
a general mass meeting in some outside hall if necessary.
Several of the committee members felt that this would simply
incite trouble at the hall, but others seemed to think that the
Association should be able to police their own meetings.
Mr. Carrier was requested by Mr. Martin to advise Mr. Kline
of their desire to have him address them on Monday.
Again, on July 11, 1936, the Association group 'brought up the
matter of a wage increase. Once more, among the Association argu-
ments for a pay boost, there appeared the contention that it was
necessary in order to forestall Local 2096. The following appears in
Carrier's notes :
Mr. Gilpin then made the statement that the employees of the
company were losing interest in the Employees' Association;
that the Association was losing members, and that more interest
was being shown in Local 2096. He claimed that unless the
Association could secure a wage increase for the employees he
was fearful of the consequences.
894 NATIONAL LABOR RELATIONS BOARD
Martin supplemented this plea by observing that "the members
of the Employees' Association apparently now looked on the Asso-
ciation as simply an insurance company." After an extended dis-
course by Kline as to why the respondent could grant no increase,
attention was again turned to ways and means of selling this view-
point to the employees. Association representatives urged that Kline
draw up a bulletin setting forth the respondent's position, "so that
the representatives could refer to this bulletin and use it to back up
their interpretation of the various subjects discussed." Kline re-
sponded by saying that "it would be much more advisable to have
the explanation come through the Association." Kline assured the
representatives that "the management fully appreciated the loyal
support of the Association members both before, during and after
the strike-that they had done a fine job; and that the company
wished in every way to recognize this fact." However, he averred
that this appreciation. could not be shown by a wage increase unless
it was justified. He informed them of the respondent's desire to
have the Association "continue in the spirit of loyalty thus shown."
An increase was granted in the latter part of 1936. On March 9,
1937, the Association group again requested an increase, this time
putting the matter even more openly than before on the basis of
forestalling outside unionization. Carrier's notes read in part as
follows :
Mr. Martin then said that one of the main reasons that the
question had been brought up at the present time was the fact
that the committee realized that the C. I. O. was planning to
organize the rayon industry and that many of their members
had already been approached by old members of Local 2096
with the request that they sign up, as this Local was now an
affiliate of the C. I. O. He said that the committee was most
anxious to obtain every possible consideration for the members
of the Association so that they would be more firmly entrenched
as the C. I. O. campaign progressed.
On March 23, 1937, another meeting took place. A good part of
the discussion was concerned with the current C. I. O. organizational
drive. McGovern, one of the Association representatives, volunteered
the information that "the only interest of the organizers was to
make money from the situation; that everything else was incidental,
and that in the long run they could only expect higher dues, assess-
ments and eventually lower wages than they were at present earn-
ing." He assured the assemblage that he was "doing everything
possible to convince his fellow workmen of the foolishness of having
DECISIONS AND ORDERS 895
anything to do with any outside organization." . Kline responded
by giving the Association' group an "off-the-record" statement as to
the progress of the C. I. O. campaign in the Covington plant. He
told them that the C. I. O. there claimed a heavy membership among
the employees, and conceded that it probably had 700 or 800 mem-
bers out of 1,200 employees at Covington. He also pointed out
that the C. I. O. had there demanded recognition as sole bargaining
agent for all employees. He characterized this as "of course" an
"impossible demand." He went on to point out the allegedly spurious
nature of the union's position in the Covington situation, saying
that after a statement of the management's position, "all desire for
a strike on the part of the employees had vanished." Kline finished
off his discourse by stating that "the Employees' Association was
faced with a very important selling job . . . that if the Employees'
Association was convinced that the Management was sincere in its
efforts and agreed that -working conditions in the Cleveland plant
were good and that wages were fair, they could only help themselves
in the maintenance of their jobs by selling the honest facts to their
fellow employees who were apparently not as well informed." At
the conclusion of the meeting, Carrier gave a summary of the Asso-
ciation requests which had been granted since its inception. His
memorandum concludes :
. . . believe the meeting broke up with a feeling on the part
of all the members of the committee that the Association had
accomplished a great deal and that because of this and because
of undoubtedly good working conditions and wages they had
many good selling points to combat the attempt of the CIO
to make trouble in the Cleveland plant. Only time will tell
whether any good was accomplished.
Finally, the meeting on April 20, 1937, merits some attention.
Here again Kline took the Association group into his confidence and
gave them inside information on C. I. O. activities. Asking them to
treat his remarks as confidential, he told them that a C. I. O. repre-
sensative had asked for a bargaining conference relating to both the
Cleveland and Covington plants. Williams, one of the Association
representatives, spoke up and said he had heard a rumor that after
the C. I. O. meeting with the respondent, there would be no more
Employees' Association. This apparently drew no direct comment
from Kline, who was then handed by Martin a copy of a mimeo-
graphed letter which the Association was mailing out to its member-
ship. The letter denied that the Association was a company union;
citing an alleged decision of the "National Labor Relations Board"
disproving any such claim, and asked the readers not to, be misled
896 NATIONAL LABOR RELATIONS BOARD
by any statements to the contrary.' The letter, which was also
shown to Carrier, did not elicit any comment so far as Carrier's
memorandum shows.
Conclusions as to respondent's domination and support of the
Association
It is clear that the Association, originally set up with the active
assistance of the respondent, has, since the passage of the Act, con-
tinued to enjoy the support of the respondent, and has reciprocated
by acting as a docile instrumentality serving the respondent well as
a bulwark against outside unionization. Shortly after the passage
of the Act in 1935, the respondent paid $2,500 to Lamb for his serv-
ices in helping break the strike of Local 2096, as attorney for the As-
sociation; again, in 1937, when the Association, threatened by the
advent of the C. I. 0., scurried to the respondent for advice, Kline as-
sisted Martin in locating counsel. All the while, under the financial
arrangement in the establishment of which the respondent had an
important part, the Association has been devoid of funds with which
to carry on substantial union activities. In addition to the above, the
respondent's own records of its meetings with the Association and
Local 2096 clearly reveal the subserviency of the Association. In
fact, it may fairly be said that a customary procedure consisted of
(1) the Association group requesting a wage increase and citing as
one of the principal arguments the fact that the increase was neces-
sary to forestall outside unionization and keep Association member-
ship intact; (2) officials of the respondent stating reasons against the
increase, although in at least one instance heartily commending the
Association for its "loyalty," and giving out confidential information
on the activities of the rival union; and (3) the meeting winding up
with a pledge by the Association representatives to sell to the em-
ployees the management's viewpoint, this pledge sometimes being
supplemented by a discussion of ways and means by which the Asso-
ciation could most effectively put across the management arguments
,and undermine the efforts of the "outside" organizers.
The Association's role as a management instrumentality in com-
batting the T. W. 0. C. is further illustrated by its activities in
connection with the election in July 1937, which we will discuss
hereinafter in the section headed "The Determination of Represen-
tatives."
e The reference apparently was to the decision of the Textile Labor Relations Board
in April 1935 . It may fairly be assumed that either the Association officials or the
'respondent 's officers , or both , realized the falsity of the assertion that this Board had
passed on the question . No suggestion was made by anyone, however , that this misrepre-
sentation be deleted from the letter.
DECISIONS AND ORDERS 897
We find that the respondent has dominated and interfered with
the administration of the Association, and has contributed financial
and other support to it, thereby engaging in unfair labor practices
within the meaning of Section 8 (2) of the Act. We also find that
by such illegal sponsorship of the Association, the respondent has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act, and has thereby
engaged in unfair labor practices within the meaning of Section
8 (1) 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 business 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 obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has, since the passage of the
Act, continued to support and dominate the Association, in the origi-
nal creation of which the respondent played such a significant role.
Under the circumstances, the Association stands as an organization
incapable of serving as a true representative of the employees for
collective bargaining purposes. We shall accordingly order the re-
spondent to disestablish it as a bargaining representative. How-
ever, once the Association is thus removed from the picture, the
continuation of the sickness and disability benefit plan on a non-
discriminatory basis, or its abandonment, is a matter with which we
are not concerned.
VI. THE QUESTIONS CONCERNING REPRESENTATION
In February 1937, Local 2214 and the Virginia Corporation began
negotiating pursuant to a request of Local 2214 that an agreement
be entered into covering the employees at the Covington plant. The
negotiations broke down and a strike began on March 29, 1937. At
about that time, the members of Local 2214, as well as those of Local
2096 at the respondent's Cleveland plant, signed membership cards
in the T.- W. 0. C. The T. W. 0. C. soon made known its desire to
negotiate a single agreement covering both the respondent's Cleve-'
land plant and the Virginia Corporation's Covington plant. Kline,
vice president of the respondent, met with the T. W. 0. C. represen-
898 NATIONAL LABOR RELATIONS BOARD
tatives in New York City on May 2, 1937, and refused to negotiate
concerning an agreement covering both plants, although willing to
discuss the difficulties at Covington. He alleged that the Cleveland
plant constituted a separate unit, and denied that the T. W. O. C.
had a majority there; he also pointed to the presence of the Asso-
ciation at the Cleveland plant, and averred that he was under a
duty to deal with that group as well. Kline and the T. W. O. C.
group met again later without reaching an agreement on these
issues, and on May 17, 1937, the T. W. O. C., in order to effectuate
its demand for a contract, called a strike at the Cleveland plant.
The Covington strike was still in effect, and in fact both plants re-
mained struck at the time of the hearings in June.
The T. W. O. C. asserts that it represents a majority of the,em-
ployees at each plant, as well as a majority of the two combined.
The respondent and the Virginia Corporation, in their answers to
the T. W. O. C. petition, denied accurate knowledge of the extent
of T. W. O. C. membership in the respective plants. Neither denied
the existence of a question concerning representation.
On the basis of the above facts, we find that a question has arisen
concerning the representation of employees of the respondent, and
also that a question has arisen concerning the representation of
employees of the Virginia Corporation.
VII. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON
COMMERCE
We find that the questions concerning representation which have
arisen, occurring in connection with the operations of the respondent
and the Virginia Corporation described in Section I above, have a
close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and have led and tend to lead to
labor disputes threatening and obstructing commerce and the free
flow of commerce.
VIII. THE APPROPRIATE UNITS
The T. W. O. C. desires that all employees of the respondent and
the Virginia Corporation, except supervisory, clerical, and salaried
employees, be grouped together in a single unit; the respondent, the
Virginia Corporation, and the Association dispute the appropriate-
ness of a single unit and desire separate units for employees of the
respondent and employees of the Virginia Corporation.
Certain facts in the record lend color to the T. W. O. C. con-
tention. Thus, the Virginia Corporation is the wholly owned sub-
sidiary of the respondent; Rivitz is president, Kline vice president,
DECISIONS AND ORDERS 899
of both corporations; broad questions of administrative and operat-
ing policy are centrally determined, and this includes major issues
relating to labor relations. To some extent, the two corporations
are unquestionably operated as a single, integrated enterprise.
On the other hand, there are present in this case a number of
cogent reasons for separate units. The plant at Cleveland is several
hundred miles from the Covington plant; 'they are in different sec-
tions of the country. Wages are lo«er in Covington, even for the
same type of work. A larger proportion of the workers in the Cov-
ington plant are women. Nor are the operations of the two plants
the same. No fabric is produced in Covington ; the yarn manu-
factured there is of a different type from that produced at Cleve-
land. Negotiations between workers and management have been
conducted locally in each plant for some years, despite the common
ultimate management; although the T. W. O. C. has attempted to
deal for the two plants together, this was a recent development, and
did not progress sufficiently to indicate whether it would be as feas-
ible as the separate negotiating which had previously prevailed.
Because of the distance between the two plants and the different
types of operations performed at each, interchange of workers be-
tween the plants is, if not impossible, at least highly'impractical.
Upon the whole record, and for the reasons enumerated above,
we are of the opinion that the T. W. O. C. contention should be
overruled.
We find that all of the employees of the respondent, except super-
visory, clerical, and salaried employees, and all of the employees
of the Virginia Corporation,-except supervisory, clerical, and sala-
ried employees, constitute separate units appropriate for the pur-
poses of collective bargaining, and that said units insure to em-
ployees of the respondent and employees of the Virginia Corpora-
tion the full benefit of their right to self-organization and to' col-
lective bargaining and otherwise effectuate the policies of the Act.
Ix. THE DETERMINATION OF REPRESENTATIVES
At the hearing, although representatives of the T. W. O. C. testi-
fied that a majority of the employees in both the Cleveland and
Covington plants had signed T. W. O. C. cards, no documentary
evidence, on which a certification of representatives without an
election could be based, was introduced. We concluded that elec-
tions by secret ballot were necessary to resolve the questions con-
cerning representation which had arisen, and we issued the Direc-
tion of Elections accordingly.
No question has been raised as to the ballot in Covington, where
the results of the election, as set forth above, reveal a clear majority
900 NATIONAL LABOR RELATIONS BOARD
in favor of the T. W. O. C. On the basis of the secret election,
we find that the T. W. O. C. has been designated and selected by a
majority of the employees of the Virginia Corporation in the ap-
propriate unit as their representative for the purposes of collective
bargaining. It is, therefore, the exclusive representative of all the
employees in such unit for the purposes of collective bargaining,
and we will so certify.
As to the Cleveland election,' the T. W. O. C. objections raise a
serious question as to. whether, in view of the circumstances sur-
rounding the voting, the results represent the free choice of the
employees.
The Board's Direction of Elections was, as previously noted,
issued on July 9, 1937. The election was held on Saturday, July
17, in a voting booth erected across the street from the respondent's
plant in Cleveland. During the week preceding the election, the
Association officers and counsel were extremely active in campaign-
ing against the T. W. O. C. On July 13, and again on July 15,
three sets of mimeographed or multigraphed letters were sent out
by the Association to employees of the respondent. The letters
related to the coming election, and vilified Sidney Hillman, chair-
man of the T. W. O. C., and other T. W. O. C. leaders, referring
to the T. W. O. C. as a "racket" and "irresponsible gang," bent on
lining their pockets with the employees' money. Employees were
warned that the T. W. O. C.'s "irresponsible tactics" would run the
country into another depression, "maybe another Spain." While
the record does not show that officials of the respondent had a direct
hand in the preparation of the letters, which were drawn up by Cal-
houn, the Association attorney, it will nevertheless be relevant to
inquire into the circumstances surrounding this anti-T. W. O. C.
barrage.
The individuals primarily involved in the preparation and mail-
ing of these letters were Calhoun, Lawrence Martin, president of the
Association, John Zinser, the secretary, George Delzieth, the treas-
urer, and John Maitland, vice president. This group comprised the
executive committee of the Association, and met with Calhoun at
his office several times during the week preceding the election.
Maitland testified at the first hearing on the- objections that he
spent about 2 hours "around noon time" on July 15, helping seal
envelopes containing the letters sent out that day. He further stated
that Martin, Zinser, Delzieth, and one or two others were present at
the time. After considerable wavering, he finally recalled that he
had been working at the plant that morning, and had secured the
permission of his foreman, Russ Morgan, to go downtown "on busi-
ness." He punched the time clock upon arriving at the plant in the
morning, but did not punch out that day. At the second hearing his
DECISIONS AND ORDERS 901
story was somewhat different; he then said he had been at Calhoun's
office helping seal envelopes perhaps 2 hours later than the noon
period. He confirmed his prior testimony that he was excused from
work by his foreman, and estimated that he was away about 21/2
hours-2 hours at Calhoun's office and 1/2 hour to get there from the
plant. He could not recall whether he was paid for this 21/2-hour
period. That he clearly was paid for most if not all of the time
so spent appears from his time card, which shows that the respond-
ent paid him on the 15th for working from 7:17 a. m. until 6 p. m.
Martin's testimony largely corroborates the general picture gleaned
from Maitland's rather unclear story. Martin said that on July 15,
he spent 3 or 4 hours in Calhoun's office sealing envelopes, sometime
around noon. He further testified that, although he was supposed to
work until about 3: 30 or 4 p. m. that day, he merely told Carrier
(the plant superintendent) or Sanborn (the employment manager)
that he was going to Calhoun's office, and walked out of the plant.
His time card reveals that on the 15th he was paid by the respond-
ent for working from 7: 05 a. m. until 3: 45 p. m.
Zinser's testimony on this point does not fit very well into the
story told by Maitland and Martin. It will be recalled that at the
first hearing, which was held only about a month after the election
period, Maitland testified that Zinser was among the group sealing
envelopes at Calhoun's office on the 15th. Calhoun also testified and
clearly recalled that Zinser was present at that time. Zinser, while
admitting that during that week he had been down at Calhoun's
office at least 3 times, placed the time as late afternoon, after he had
finished work at the plant. His time card reveals that he was paid
that day for the hours of 7:05 a. m. until 4 p. m.
Delzieth, whose evasiveness was so gross that the Trial Examiner
commented on it for the record, admitted that he had been at Cal-
houn's office several times that week, and said it was always in the
afternoon, although he was not quite sure whether it was late in the
afternoon or not. His time card shows payment for the period from
about 3: 30 until 11: 30 p. m. for the entire week.
It is abundantly clear from all the above facts that the respondent
paid the Association officers for a considerable amount of time spent
at Calhoun's office in electioneering work. While the record does not
show affirmatively that officials of the respondent were aware of the
precise nature of the activity of these men during the time they were
absent, we would be credulous indeed to suppose that the respondent
did not realize that they were engaged in some sort of electioneering
work. Over a period of several years, the respondent had become
entirely familiar with the fact that the Association officers were eager
to hamstring the activities of Local 2096 and, later, the T. W. O. C.
The respondent knew that the election had been scheduled for the end
902 NATIONAL LABOR RELATIONS BOARD
of the week, with' the Association excluded from the ballot. Under
such circumstances, for the respondent to allow the Association officers
to take time off from their work without loss of pay, clearly impli-
cates the respondent in the anti-T. W. O. C. campaign waged by the
Association. ,
The activities ,of the Association officers on election day are also
significant. It appears that during the week preceding the election,
the plant was being put into operation, although the T. W. O. C.
picket lines were still present. Throughout the week the Association
officers, as well as certain supervisory employees, had been engaged
in bringing people in to work in their cars. They were paid by the
respondent for time so spent, and paid as well for the gasoline used.'
On Saturday, July 17, the day of the election, the respondent ap-
parently was to resume spinning operations for the first time since the
reopening of the plant. There is no doubt that the Association officers
were unusually active throughout the day in bringing people in to the'
plant in their cars; they were paid for the time and also the gasoline
so used. The respondent contends that this activity was only for
the purpose of bringing employees to the plant to report for work.
The evidence shows that to a great extent employees were brought in
in this manner for the purpose of voting. It will be necessary to
scrutinize the evidence on this point rather closely.
At the first hearing on the objections, Martin testified on direct
examination by counsel for the union that on election day he sent
out a number of cars to bring people in to vote, that the respondent's
employment office would receive telephone calls from the employees
and transmit to the Association officers their names so that they
could be found and brought in to vote, and that Carrier, the respond-
ent's plant superintendent, paid for the gasoline. He also testified
on direct examination that he was not paid for that day. On cross-
examination by counsel for the, respondent, Martin was asked whether
it was not the case that he was merely furnished gasoline for bring-
ing people to work, not to vote; he readily accepted this interpre-
tation. On re-direct examination, he recalled that he had been paid
after all for his services on election day, and became very hazy as
to whether he was bringing in employees to work or to vote. Fi-
nally, on re-cross-examination by counsel for the respondent, he
evolved still another theory, that he had not been paid at all on the
Saturday of the election, but had been thinking of the prior Saturday
all the time. That he was actually bringing in people to vote on
election day became clear by the following question and answer :
Q. (By counsel for respondent) And the days you sent or
the day you sent out cars to get people to vote you were not
paid for?
A. No.
DECISIONS AND ORDERS 903
Coming to the second hearing on the objections, Martin started
off his testimony by averring that he did not work for the respondent
at all on election day. Later he changed this story and admitted
he was paid for working that day, and that his work consisted of
bringing people in to the plant. He testified that Sanborn, employ-
ment manager of the respondent, gave him the names of the people
to get. Reminded that Sanborn was in the election booth all day
as an observer, he suggested that someone else from the employment
office must have given him the names. By this time he apparently
had decided to adhere to the version that the employees were merely
brought in to work, not to vote, although he admitted bringing in
at least one person to vote. He said he was "on the go all the time"
during election day, and confirmed the fact that he was paid for the
gasoline used. His time card, introduced into evidence, shows that
on election day, July 17, he was paid for 8 hours of work.
While Martin's testimony is a welter of confusion and contradic-
tion, indicating that he was at all times in a state of indecision as
to which story he wanted to tell, it appears fairly clear to us that
he was paid on election day for bringing people in to vote, although
some of them may also have worked, and it is very clear that he
was extremely active in this undertaking.
The testimony of Zinser is somewhat more clear, although not en-
tirely straightforward. He stated that the executive committee of
the Association decided, sometime prior to the election, to send out
cars on election day and round up the voters. He denied knowledge
of getting any names from the employment office, saying that he
and the other Association officials merely sent for those people they
thought were not in the plant that day. He further testified that
the gasoline for such expeditions was not paid for by the respondent,
although the respondent had furnished the gasoline previously in the
week for picking up employees to come to work. His testimony as
to the procedure followed by the Association group on election day
is revealing :
Q. 'Did you go about collecting employees'in any cars for the
purpose of bringing them down to vote?
A. We did, yes.
Q. These employees were they brought into the plant property
first before they went to vote?
A. Yes.
Q. Whereabouts in the plant were they first brought?
A. They were driven around into the rear of the plant and
'vent into the plant right straight over to the voting booth.
106791-38-vol vu-58
904 NATIONAL LABOR RELATIONS BOARD
Q. And where did they go after that?
A. They come back and we took them home.
The above testimony was given at the first hearing on the objec-
tions. At the subsequent hearing, Zinser did not elaborate on the
occurrences on election day. He testified that he was around the
plant during that day, but that he believed he was not paid for his
services on election day. His time card, introduced into evidence,
reveals that on July 17, election day, Zinser was paid for 8 hours of
work.
Delzieth testified that he started working at his job in the dye
house about 3: 30 p. m. the day of the election, that he voted around
noon, and that before starting work he sat around the Association
office in the plant checking lists and seeing that members got out to
vote. He denied knowledge of any cars being sent out to get voters,
however, but admitted that he was not sure whether or not the other
Association officials, who were in and out of the office during the day,
had dispatched such cars. His time card shows that he was paid
for 8 hours of work on election day. While his testimony is not gen-
erally very credible (the Trial Examiner commented for the record
on Delzieth's evasiveness), such facts as were elicited from him fit
into the general picture described by Zinser.
Maitland, the vice president, did not play an active role in the
process of rounding up voters, since he was acting as an observer
for the respondent at the voting booth throughout the day.
The testimony of Bessie McCormick, an employee who belongs both
to the Association and to the T. W. O. C., is revealing in this regard.
At about 8 a. in. on election day, two men whom she recognized as
employees of the respondent drove up in a car to her home. One
of them told her to be sure and go down to the plant and vote, and
to see Sanborn, the employment manager, before doing so. She did
not know the names of the men, but in the light of the other testi-
mony in the case it is clear to us that this incident fits in with the
picture of the Association officers' solicitation of voters.
Upon all the evidence, we are convinced that the Association officers
did engage in extensive campaigning on election day, and did send
out cars to bring in voters. They were, as their time cards show,
paid by the respondent for that day, and the respondent also paid
for the gasoline they used. And we cannot believe that the respond-
ent's officials, most of whom were present throughout the day, were
so blind as to be unaware of these strenuous activities which were
centralized in and around its plant.
The above facts make it unnecessary for us to consider certain
other allegations made by the T. W. O. C. as to the conduct of the
election. Our purpose under the Act is to insure a free choice of rep-
DECISIONS AND ORDERS 905
resentatives, and when, as here, the employer is implicated in election-
eering activites, there is warrant for voiding the results and ordering
another election. In this case, despite the obvious evasiveness of the
Association officers on the witness stand, indicating that they did
not tell the whole story, we are convinced from their own testimony
that the election should be voided, and we hereby declare it void.,
We shall direct that another election be held, and we will set the
date for such election when we are satisfied that there has been
sufficient compliance with our order to dissipate the effects of the un-
fair labor practices of the respondent and to permit an election
uninfluenced by the respondent's conduct.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Organizing Committee and the Employees As-
sociation of Industrial Rayon Corporation are labor organizations,
within the meaning of Section 2 (5) of the Act.
2. The respondent, by dominating and interfering with the admin-
istration of the Association and by contributing support thereto, has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2) of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor prac-
tices, 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.
5. Questions affecting commerce have arisen concerning the repre-
sentation of employees of the respondent, Cleveland, Ohio, and the
Virginia Corporation, Covington, Virginia, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
6. All of the employees of the respondent, at its Cleveland, Ohio,
plant, except supervisory, clerical and salaried employees, constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act.
7. All of the employees of the Virginia Corporation, at its plant
in Covington, Virginia, except supervisory, clerical and salaried em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
8. Textile Workers Organizing Committee is the exclusive repre-
sentative of all the employees of the Virginia Corporation in the
906 NATIONAL LABOR RELATIONS BOARD
above-stated unit for the purposes of collective bargaining, within
the meaning of Section 9 (a) of the National Labor Relations Act;
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Industrial Rayon Corporation, Cleveland, Ohio, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of the
Employees Association of Industrial Rayon Corporation, or with
the formation or administration of any other labor, organization of
its employees, and from contributing financial or other support to
the said Association or to any other labor organization of its
employees ;
(b) In any other manner interfering with, restraining, or coercing
its employees in their rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and-to engage in concerted activi-
fies for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from the Employees Association of
Industrial Rayon Corporation as a representative of any of its
employees for the purposes of dealing with the respondent concern-
ing grievances, labor disputes, rates of pay, wages, hours of em-
ployment, or other conditions of employment, and completely
disestablish the Employees Association of Industrial Rayon Cor-
poration as such representative ;
(b) Post immediately in conspicuous places at its plant in Cleve-
land, Ohio, notices to its employees stating (1) that the respondent
will cease and desist in the manner aforesaid, and (2) that the
respondent withdraws and will refrain from all recognition of the
Employees Association of Industrial Rayon Corporation as a rep-
resentative of any of its employees for the purposes of dealing with
the respondent concerning grievances, labor disputes, rates of pay,
wages, hours of employment, or other conditions of employment,
and that the respondent completely disestablishes it as such
representative;
(c) Maintain such notices for a period of at least thirty (30)
consecutive days from the date of posting;
DECISIONS AND ORDERS 907
(d) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 , (c) of the National Labor
Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 8
and 9, of National Labor Relations Board Rules and Regulations-
Series 1, as amended,
IT IS I-IEREBY CERTIFIED that Textile Workers Organizing Com-
mittee has been selected by a majority of the employees of Industrial
Rayon Corporation of Virginia, except supervisory, clerical, and
'salaried employees, as their representative for the purposes of col-
lective bargaining, and that, pursuant to Section 9 (a) of the Act,
Textile Workers Organizing Committee is the exclusive representa-
tive of all such employees for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, and other
conditions of employment.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
DIRECTED that, as part of the investigation directed by the Board
to ascertain representatives for the purposes of collective bargaining
with Industrial Rayon Corporation, Cleveland, Ohio, an election
by secret ballot shall be conducted at such time as the Board shall
in the future direct, under the direction and supervision of the
Regional Director for the Eighth Region, acting in this matter as
agent for the National Labor Relations Board, among all employees
of Industrial Rayon Corporation at its Cleveland, Ohio, plant, except
supervisory, clerical, and salaried employees, to determine whether
or not they desire to be represented by Textile Workers Organizing
Committee for the purposes of collective bargaining.