Semet-Solvay Co.

National Labor Relations Board - Board Decisions

May 28, 1938

7 N.L.R.B. 511 (N.L.R.B. 1938)

In the Matter of SEMET-SOLVAY COMPANY and DETROIT COKE OVEN
EMPLOYEES ASSOCIATION and INTERNATIONAL UNION, UNITED AUTO-
MOBILE WORKERS OF AMERICA, LOCAL 174
Cases Nos. 8-547 and C-384.-Decided May 08, 1938
Coke and Coke Byproducts Manufacturing Industry-Interference, Restraint,
and Coercion: expressed opposition to labor organization; discrediting union;
questioning employees regarding union activity; threat to close plant-Company-
Dominated Union: domination of and interference with formation and adminis-
tration ; activities of.supervisory employees ; disestablished, as agency for col-
lective bargaining-Discrimination: lay-offs or discharges ; charges of, not
sustained-Collective Bargaining: charges of refusal to, bargain collectively,
not sustained-Investigation of Representatives: controversy concerning repre-
sentation of employees-Strike: sit-down-Picketing-Unit Appropriate for Col-
lective Bargaining: hourly paid employees, excluding office, clerical, and super-
visory employees and watchmen ; no controversy as to-Election Ordered
Mr. Harold A. Crane field and Mr. George J. Bott, for the Board.
Butzel, Eaman, Long, Gust & Bills, by Mr. R. T. Gust, of Detroit,
Mich., for the respondent.
Mr. William S. McDowell, of Detroit, Mich., for the Association.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 5, 1937, International Union, United Automobile Work-
ers of America, Local 174, herein called the U. A. W., filed a petition
with the Regional Director for the Seventh Region (Detroit, Michi-
gan) alleging that a question affecting commerce had arisen con-
cerning the representation of employees at the Detroit plant of
Semet-Solvay Company and requesting an investigation and certifi-
cation of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On the same
date, the U. A. W. filed a charge with the said Regional Director
alleging that Semet-Solvay Company, herein called the respondent,
had engaged in and was engaging in unfair labor practices affecting
511
512 NATIONAL LABOR RELATIONS BOARD
commerce. within the meaning of the Act. On June 10, 1937, the
U. A. W. filed an amended petition and an amended charge.
On June 14, 1937, the National Labor Relations Board, herein
called 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 an investigation and
authorized the Regional Director for the Seventh Region to conduct
it and to provide for an appropriate hearing upon due notice, and
acting pursuant to Article III, Section 10 (c), of said Rules and Regu-
lations, further ordered that the two cases be consolidated for the
purposes of hearing.
On June 22 , 1937, the said Regional Director issued a complaint
and notice of hearing, which were duly served upon the respondent,
the U . A. W., and Detroit Coke Oven Employees Association , herein
called the Association , another labor organization claiming to repre-
sent the employees of the respondent . The complaint alleged, in sub-
stance, that the respondent had dominated and interfered with the
formation and administration of the Association; that the respondent
on or about March 27, 28 , and 29, 1937 , had discharged 40' named em-
ployees because of their union activities and thereby discouraged
membership in the U. A. W.; i hat the respondent on or about March
16, 1937, and on various dates thereafter refused to bargain collectively
with the U. A. W., which had been designated as the collective bargain-
ing agent by a majority of the employees in an appropriate unit;
and that by these acts and further acts, the respondent had engaged
in and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 ( 1), (2), (3), and ( 5), and Section
2 (6) and (7), of the Act.
On June 28, 1937, the Association filed an answer to the complaint,
denying that the U. A. W. had been selected as the collective bar-
gaining agent by a majority of the employees in an appropriate unit
or that the formation or administration of the Association had been
dominated or interfered with by the respondent . The answer also
alleged that the Association had been selected as the collective bar-
gaining agent,by a majority of the employees in the unit which had
been alleged to be appropriate by the U. A. W.
The respondent filed an answer to the complaint on July 2, 1937.
The respondent admitted in the answer that its business was of such
character as to subject it to the provisions of the Act and admitted
that the persons named in the complaint had been laid off , but denied
that the respondent had engaged in any unfair labor practices within
the meaning of the Act.
Pursuant to a subsequent notice of hearing duly served upon all
the parties , a hearing was held in Detroit, Michigan , between July 6
DECISIONS AND ORDERS 513
and 24, 1937, inclusive, before William R. Ringer, the Trial Examiner
duly designated by the Board. The Board, the respondent, and the
Association were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
all parties. During the course of the hearing the Trial Examiner
made numerous rulings on motions and on objections to the introduc-
tion of evidence. The Board has reviewed these rulings and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed.
Subsequent to the hearing, briefs were filed by counsel for the
respondent, counsel for the Association, and counsel for the Board.
On January, 19, 1938, the Trial Examiner issued an Intermediate
Report finding that the evidence failed to sustain the allegations of
the complaint and recommending that the complaint be dismissed.
Thereafter, the U. A. W. filed exceptions to the Intermediate Report.
The Board has considered the exceptions and, to the extent indicated
below, sustains them.
On March 9, 1938, a stipulation signed by the respondent, the Asso-
ciation, International Union, United Automobile Workers of America,
Local No. 174, Gas, By-Product Coke and Chemical Workers, Local
12082, District 50, United Mine Workers of America, and the Regional
Attorney for the Seventh Region, was made a part of the record in the
case. The stipulation states that subsequent to the hearing, the em-
ployees of the respondent who were members of Local 174, surrendered
their memberships in Local 174 and thereupon applied for and received
a charter from United Mine Workers of America, likewise affiliated
with the Committee for Industrial Organization. The charter created
Gas, By-Product Coke and Chemical Workers, -Local 12082, District
50, United Mine Workers of America, to which the employees of the
respondent who were formerly members of Local 174, now belong.
This change of affiliation was that contemplated at the time when
International Union, United Automobile Workers of America, Local
174 undertook organization of the respondent's plant, which is dis=
cussed hereafter. The stipulation further provided that the Board
might enter an order upon the stipulation that Gas, By-Product Coke
and Chemical Workers, Local 12082,'District 50, United Mine Workers
of America, be substituted for International Union, United Automo-
bile Workers of America, Local No. 174 in any further proceedings had
in this matter.
On May 5, 1938, the Board notified the parties of the right, within
10 days, to apply for oral argument or permission to file briefs. No^
such requests were made by any of the parties.
Z14 NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Semet-Solvay Company, a New York corporation, with its prin-
cipal office in New York City, is engaged in the manufacture of coke
and coke byproducts at plants located in Buffalo and Syracuse, New
York; Ensley, Alabama; and Detroit, Michigan.
The answer of the respondent admitted that allegation of the
complaint which stated :
.
The respondent in the course and conduct of its business
causes and has continuously caused most of the raw materials
used in the manufacture of its products, principally bituminous
coal, to be purchased and transported in interstate commerce
from and through States of the United States other than the
State of Michigan to its Detroit plant in the State of Michigan,
and causes and has continuously caused a large part of the
products manufactured by it to be sold and transported in inter-
state commerce from its Detroit plant in the State of Michigan
into and through States of the United States other than the State
of Michigan and into foreign countries.
We so find. The record discloses that at the time of the hearing, the
Detroit plant of the respondent was using approximately 3,500 tons
of coal per day, none of which was obtained in the State of Michigan.
The record does not indicate the exact proportion of the coke and
coke byproducts, manufactured at the Detroit plant which are shipped
outside the State of Michigan.
H. THE LABOR ORGANIZATIONS INVOLVED
Local 174, a labor organization, is a local of International Union,
United Automobile Workers of America, affiliated with the Com-
mittee for Industrial Organization. Gas, By-Product Coke and
Chemical Workers, Local 12082, District 50, United Mine Workers
of America, is a labor organization, which also is affiliated with the
Committee for Industrial Organization.
Detroit Coke Oven Employees Association, a non-profit corpora-
tion chartered under the laws of the State of Michigan, is an unaffili-
ated labor organization admitting to membership hourly paid
employees in the Detroit plant of the respondent.
DECISIONS AND ORDERS 515
III. THE UNFAIR LABOR PRACTICES
A. Chronological development of. the labor dispute
Early in March 1937 some of the employees of the respondent so-
licited aid in organizing from the Detroit headquarters of the Com-
mittee for Industrial Organization, herein called the C. I. O. There
had been no organization among the employees in the respondent's
Detroit plant prior to this time. The employees were referred to the
offices of the International Union, United Automobile Workers, who
it was stated, had been given authority by the C. I. O. to organize
miscellaneous groups of workers until such time as the C. I. O. set
up organizations for workers in these industries.
The first meeting of the respondent's employees for the purpose of
organizing was held on March 12, 1937. About 100 of the 320 hourly
paid employees then employed in the Detroit plant signed cards apply-
ing for membership in Local 174 at this meeting. Subsequent meet-
ings of the respondent's employees were held on March 15, 19, and 29.
The record shows that the respondent knew of these activities on or
shortly after March 15 and knew, at least, the identity of the
employees most prominently engaged in these activities.
On March 22, 1937, Frank E. Hartung, a C. I. O. organizer, called
R. E. Exum, superintendent of the Detroit plant, by telephone. E. B.
Conklin, assistant superintendent, talked with Hartung. Hartung
stated that he wished to talk with Exum concerning some demands or
-proposals for an agreement which had been drawn up by the employees
who had joined the U. A. W. Conklin stated that Exum was out of
town and would not return until the end of the week or the beginning
of the following week and that he, Conklin, had no authority to grant
such a request. Hartung left his name and number, requesting that a
message be left for Exum to call him.
On March 27, 28, and 29, the respondent laid off or discharged 41
employees; telling at least all but a few that when operations picked
up and work was available they would be recalled.
During the day of March 29, Hartung, not having heard from
Exum, again called the respondent's office and was told that Exum
was not there at the time. Hartung again stated his reason for calling
and left his name and number with the request that Exum communi-
cate with him.
On the evening of March 29, the U. A. W. held a special meeting to
determine what action should be taken concerning the lay-offs or dis-
charges, which the members felt to have been discriminatory. A com-
mittee of five was elected at the meeting to whom power was given to
take any action which the committee deemed necessary or appropriate.
The committee, having decided to take strike action, recruited 17 per-
516 NATIONAL LABOR RELATIONS BOARD
sons, who went to the powerhouse of the respondent and cut off the
power necessary to the operation of the plant. Various members of
the respondent's supervisory force attempted to persuade the 17 men,
who had stationed themselves in the powerhouse, to come out, but they
refused unless Exum, who was then in the plant, would deal with them
concerning the laid-off or discharged employees. Exum refused and
requested the city police to evict the men, stating that a majority of the
17 were no longer employees of the respondent since they had been laid
off in the previous 2 or 3 days. The police commissioner refused on
the ground that the men wore badges, which are normally required to
be surrendered to the respondent when an employee is laid off or
discharged. After this refusal, the respondent's officers ceased their
efforts to regain possession of the powerhouse and directed their ac-
tivities towards shutting down the plant in such manner as to protect
the property from the dangers of fire and explosion, dangers which
are inherent in the shutting down of coke ovens. .
The seizure of control,of the powerhouse by the strikers took place
about 11 p. in. on March 29. By the following morning the members
bf the U. A. W. had taken possession of the entire plant, establishing
and maintaining guards and pickets, and other groups or committees
deemed necessary to conduct the strike. A limited number of fore-
men and supervisory employees were granted passes by the strikers and
allowed to come into the plant during the following week. These
persons, accompanied by guards appointed by the U. A. W., directed
or aided in the complete shut-down of the plant. As soon as this was
accomplished, the U. A. W. took up the passes and allowed no one,
except members of the U. A. W. engaged in patrolling and guarding,
to enter the plant.
Hartung testified that between March 29 and April 15 he made
several efforts to talk to Exum by telephone, but was unable to reach
him. On April 15, 1937, Frank H. Bowen, Regional Director for the
Seventh Region of the National Labor Relations Board, in the course
of investigating the charge and the petition which had been filed by
the U. A. W. on April 5, arranged for Conklin to go into the plant on
the following day to hear the demands of the U. A. W. Conklin and
two or three foremen were accordingly admitted to the plant and
received the collective bargaining committee of the U. A. W. Conklin
stated that he had authorii v only to receive the demands, which were
presented to him, and refused to negotiate with the committee concern-
ing the demands. The following day, the U. A. W. again denied the
respondent's supervisory employees access to the plant.
On April 20 Thomas Frisbee, an employee of the respondent, called
Conklin by telephone. Frisbee stated that he represented the Detroit
Coke Ovens Employees Association, an organization which, he said,
DECISIONS AND ORDERS 517
a majority of the respondent's employees had joined, and that the Asso-
ciation had drawn up demands which they wished to present to the re-
spondent. He asked Conklin to arrange to receive their committee.
Conklin communicated with William Wingert,' general superintendent
of all the respondent's plants, who was in Detroit in connection with
the labor dispute, and was instructed by Wingert to make arrange-
ments to receive the Association's demands. Conklin called Frisbee
and arranged to meet the Association's committee the following day.
Conklin likewise stated to this committee, when he met them, that he
had no authority to negotiate but had met them only for the purpose
of receiving their demands.
On Apri121 Conklin made arrangements with both committees for
separate meetings on April 24 to discuss their respective proposed
agreements. On April 24 Conklin, Wingert, and G. E. Brandon,
general manager of the respondent, met with both committees, and
spent approximately 2 to 3 hours with each. Both meetings were
adjourned with the understanding that subsequent meetings would
be held at any early date for the purpose of attempting to reach an
agreement. On April 27 the respondent's representatives again met
with the committee of the Association. On April 28 the respondent
submitted identical proposed agreements to each of the committees,
and again 2 to 3 hours were spent by each group with the respondent's
representatives. Both organizations accepted the proposed agree-
ment. Immediately after the committee of the U. A. W. had agreed
to accept the respondent's proposals, the agreement was submitted
to the members of the U. A. W. in the respondent's plant. The
strikers, after voting to accept the proposed agreement, evacuated the
plant.
The respondent began the following day to put the plant in
condition to reopen. Within approximately 3 weeks, all the men
who had been employed on March 27 and who wished employment,
including the 41 who had been laid off, were reinstated.
B. Interference with and domination of the formation and adminis-
tration of the Association
According to the testimony of Thomas Frisbee, the possibility of
forming an inside organization primarily for the purpose of ending
the strike was first discussed on April 14 by Frisbee and Henry Bray.
No action seems to have resulted directly from this conversation.
On April 16, Volmer and Hampton, also employees of the respondent,
requested Frisbee to assume the leadership in forming such an organi-
zation. Frisbee testified that he replied he would consider the re-
'Pursuant to arrangements completed just prior to the strike, Exum had meanwhile
been transferred to the New York office of the respondent.
518 NATIONAL LABOR RELATIONS BOARD
quest. On the morning of April 17, a group of 15 to 20 nonunion em-
ployees met in the garage at Frisbee's home and decided to see how
many persons would be interested in such an organization, and there-
by test the strength of the U. A. W. Papers headed "Detroit Em-
ployees Association of the Semet-Solvay Company" were circulated
by the group which had met in the garage and over 100 signatures
obtained by April 19. On April 19 word was circulated that a meet-
ing open to all employees of the respondent would be held that eve-
ning. Frisbee secured a hall for the meeting and arranged to have
an officer of the inside organization then in existence at the Michigan
Alkali Company address the men. During the same day, Frisbee,
Charles McFarland, Carroll McFarland, Harden Hill, and Samuel
Tait, all employees of the respondent, engaged the services of Wil-
liam S. McDowell, an attorney, to aid them in the formation of the
organization. Henry Bray, the employee with whom Frisbee talked
on April 14, is alleged to have suggested the employment of McDowell.
About 175 persons attended the meeting held on April 19. The
Michigan Alkali plan was read and explained, and McDowell read
and explained the rights of employees under the National Labor
Relations Act. The meeting was then temporarily adjourned for
the purpose of securing members. The meeting, limited to the 120
persons who joined the Association at this meeting, continued for
the election of temporary officers and representatives.
The officers and representatives of the Association, pursuant to
authority granted at the meeting of April 19, drew up a proposed
agreement on April 20, for submission to the respondent. The,
meetings which followed between the Association and the respondent,
resulting in the acceptance of the respondent's proposed agreement
by the Association on April 28, have been described previously.
In addition to the employees already named, John Abel, Sidney
Hughes, Percy Gambrell, and William Smith were identified as em-
ployees who had been instrumental in aiding in the formation of
the Association or in securing members subsequent to its formation.
The respondent admits that, of the employees named, Frisbee, most
prominent in the formation of the Association, as well as Bray, Abel,.
Hughes, Gambrell, and Smith were not ordinary production em-
ployees. The respondent sought to show, however, that the positions
of these persons were not of such supervisory character that the
respondent would be bound by their actions. .
Documentary proof and testimony introduced at the hearing indi-
cate that certain supervisory employees at the Detroit plant receive
a salary, do not work with employees, attend regular meetings of
foremen, and have authority to hire and discharge employees. These
employees are designated as foremen or assistant foremen by the
respondent. It is clear that Frisbee, Bray, Abel, Hughes, Gambrell,
DECISIONS AND ORDERS 519
and Smith did not come within this group. All were hourly paid,
worked with the men whose work they supervised, did not attend
meetings of salaried foremen, and were referred to at the hearing by
the respondent as "gang leaders." It does not follow however, that
these employees are not supervisory employees.
Several employees testified that Abel, Hughes, and others named
were their "foremen." McCain, a salaried foreman superior to Abel,
likewise referred to Abel as a "foreman" and admitted that the
employees call him "foreman." Exum, superintendent, testified that
Hughes was a "good foreman" and Bastian, a . salaried foreman,
testified that Hughes was "foreman" of the track gang. Time cards
used by the respondent which were introduced in evidence designated
Abel as "Mason Fore," Hughes as "Track Frm," Gambrell as "Shop
Frm," and William Smith as "Dock Foreman." It is obvious, there-
fore, that contrary to the position taken at the hearing, these men
even though not salaried employees, were considered foremen by
both the respondent and the employees whose work they supervised.
Such a designation alone is sufficient to indicate the supervisory
character of the positions which they occupy. Other evidence in the
record substantiates such a conclusion.
Abel receives orders concerning the work to be done from a salaried
foreman or the superintendent. He then carries these orders to the
men in his gang and directs their performance of the work. The
record shows that some time prior to the hearing, Abel reported Etter,
one of the discharged employees, for being absent from work without
notice and that Etter was laid off for a period of 2 weeks as a
disciplinary measure. Although Abel testified that Conklin had de-
termined that this disciplinary action should be taken, Abel admitted
that he had signed the form, in the space designated for the signature
of a foreman, which notified Etter that he was laid off. Abel ad-
mitted also that he had signed such forms at other times, though he
persistently denied that he was the person who had determined that
the employee should be laid off or discharged. Whether or not Abel
made final decisions in the matter of lay-offs or discharges, McCain
admitted that Abel made recommendations such as "other foremen"
made. The record also shows that Abel receives 20 to 25 cents per
hour more than other employees in his gang and that he can come
into the plant and do his work at any time, not being limited, as are
other employees, to a particular shift.
The respondent admitted that Hughes and Gambrell occupied posi-
tions in their respective departments which are of about the same
type and scope as Abel occupied in the brick mason department.
Although the exact duties of Frisbee and the other gang leaders
named are not set forth in the record, it is a reasonable assumption
100791-38-vo1, vu--34
520 NATIONAL LABOR RELATIONS BOARD
from the respondent's designation of all these employees as gang
leaders that their positions are similar to those occupied by Abel,
Hughes, and,Gambrell. Further, the record does show that in the
absence of Goodwin, chief electrician and foreman, Frisbee acts in
Goodwin's place.
Whether Frisbee, Abel, and the others are called gang leaders,
assistant foremen, or given some other title, it is clear since they
give orders to the men, report employees for infractions of rules, and
make recommendations concerning the men, that they exercise super-
visory powers. Since they are supervisory employees, their acts in
connection with the formation and administration of the Association
were the acts of the respondent.
We find that the respondent has dominated and interfered with the
formation and administration of the Association and thereby inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
C. Interference, restraint, and coercion
In addition to the respondent's interference with the rights of self-
organization by virtue of its domination of the formation and ad-
ministration of the Association, other acts of interference are indi-
cated in the record. Dobson, shift foreman, did not deny testimony
that in a conversation with Ray, an employee, he insinuated that the
C. I. 0. was composed of a "bunch of radicals" or that he told another
employee, Leonard Young, that the respondent would shut down and
never open up again if a union were organized. Vickerman, also a
foreman, admitted that during a conversation with two employees
concerning a strike in a General Motors Corporation plant, he stated
that "I don't think these big companies would stand for C. I. 0. or'
any other union." Marr, a foreman, failed to deny that he had had a
conversation with Keeton in which, according to Keeton, Marr stated
that the respondent would shut down if the plant were organized.
Whitemore, an employee, testified that Gilbert, his foreman, asked
Whitemore "how is the union coming" and when Whitemore denied
any knowledge of its activities, replied, "They ain't a dam one of you
fellows knows a thing about it." Although a witness, Gilbert failed
to deny that he had questioned Whitemore concerning the union or
made the further remarks attributed to him.
We find that the respondent by questioning its employees concern-
ing the U. A. W., by stating that the respondent would close down
rather than. deal with the U. A. W., and by otherwise indicating
antagonism toward the C. I. 0., has further interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
DECISIONS AND ORDERS 521
D. The alleged discriminatory lay-offs or discharges
The respondent alleges that the 41 men were laid off because of a
change in operations instituted by the respondent solely because of busi-
ness reasons. The record shows that prior to November 15, 1936, the
respondent supplied 25,000,000 cubic feet of gas per day to the City
of Detroit for illuminating purposes. Gas is necessarily produced in
the burning of coal to produce coke; so at all times in the respondent's
operations both coke and gas and other byproducts .have been pro-
,duced. However, prior to the expiration of its contract,with the city
in November 1936, the respondent's activities, according to the testi-
mony of the respondent's officials, were primarily governed by the re-
quirements of the contract, the nature and disposition of the coke pro-
duced being of secondary importance. On loss of the contract in No-
vember 1936, caused by the bringing of natural gas into the city, the
respondent's primary consideration became the production of market-
able coke. In January 1937 the respondent began changing opera-
tions on No. 1 battery, one of three sets of ovens in which coal- is
burned to produce coke, in such manner as to change the product from
domestic to foundry coke. The change involved the gradual lowering
of oven temperatures with a corresponding prolongation in the coking
period. Domestic coke, used for household and similar purposes,
requires a 12-hour coking period at a temperature of 1200° to 1500°,
whereas foundry coke, used in industrial plants, is produced by coking
for a 24-hour period at a temperature of 800° to 900°. The longer
coking period, according to the respondent, requires fewer men
for operation than are required for a shorter coking period. In Janu-
ary 1937, when the change of operations was completed, 12 to 15
employees were released and the balance not needed were distributed
throughout other departments in the plant. The respondent alleges
that business reasons subsequently prompted it, beginning about
March 15, to change over also the second set of ovens, No. 2 battery, to
the production of foundry coke. We are unable to find on the record
that the change begun on March 15 which culminated in the lay-off
or discharge of 41 men on March 27, 28, and 29, was motivated by any
reasons other than business policy.
The complaint names 40 persons who are alleged to have been dis-
charged because of their union activities. At the' hearing, the com-
plaint was amended by striking the names of two persons who were
established not to have been employees of the respondent.' The record
indicates that, with two exceptions, the foremen upon being informed
of the change of process, and in some cases of how many men they
would be expected to lay off, chose the men to be laid off within their
2 I. Jankaez and A . H. Peterson.
522 NATIONAL LABOR RELATIONS BOARD
respective departments. The respondent admitted that with one or
two exceptions the men laid off were competent workmen and would
rot have been laid off or discharged except for the change in opera-
tions.
Only 28 of the employees named in the complaint testified. In every
case but one of these 28, the foreman or person who had selected the
employee to be laid off, testified as to the reasons for their choice. In
no way, other than by testimony to the fact of membership or interest
in the U. A. W., were these reasons challenged or shown not to have
been the real ones. In the case of one employee, Conklin, who had
made the selection, gave no reason but testified that he had not known
of the union affiliation of the employee at the time the employee was
laid off. Moreover, although this employee testified he had joined the
U. A. W., his name does not appear on its membership roll. He had,
however, attended a meeting of the U. A. W. on March 15. Under
these circumstances, we ara unable to find that any one of the persons
who testified was laid off or discharged because of his individual union
activity.
Of these 28 witnesses, 22 testified they had joined the U. A. W. prior
to their lay-off or discharge, although only 15 of them are listed by
the U. A. W. as having joined by that time. Two others testified they'
had attended a meeting or meetings of the U. A. W. although not
members. One other witness testified that he had told a fellow em-
ployee, prior to the date on which he was laid off, that he intended
to join the U. A. W. Three of the 13 who did not testify are shown
by the membership list to have become members of the U. A. W. prior
to the date they were laid off. While the number of persons laid off
who had shown at least some interest in the U. A. W. was proportion-
ately greater compared with the total number laid off than the ratio
of union members to the total number of employees, other circum-
stances in the case prevent this fact from being as significant as it
might otherwise be.
We conclude upon all the facts in the case that there is not sufficient
proof in the record that the respondent selected the employees to be
laid off on the basis of union affiliation or activity.
We find that the respondent in the selection of men for lay-off or
discharge on March 27, 28, and 29, did not discriminate in regard to
the hire and tenure of the employees named thereby discouraging
membership in a labor organization.
E. The alleged refusal to bargain collectively
1. The appropriate unit
In the petition, the U. A. W. states that it considers all employees of
the Detroit plant, except those employed in the office or otherwise in
DECISIONS AND ORDERS 523
a clerical or supervisory capacity, to constitute an appropriate unit.
The complaint, in connection with the alleged refusal of the respond-
ent to bargain collectively, alleges that the appropriate unit consists
of "all departments of Detroit plant of respondent, excepting only the
office and plant protection department, and all hourly paid employees
engaged at said plant, excepting only those employees engaged in the
office or plant protection department or otherwise in a clerical, mana-
gerial, or supervisory capacity." The allegation of the complaint
varies from the allegation of the petition only in the exclusion of
watchmen. Evidence in the record indicates that the U. A. W. believes
that watchmen should not be included in the unit. We will, accord-
ingly, find the unit alleged in the complaint to constitute an
appropriate unit.
We find that the hourly paid employees at the Detroit plant of the
respondent, excluding office, clerical, and supervisory employees and
watchmen, constitute a unit appropriate for the purposes of collective
bargaining and that such unit will insure to the employees of the
respondent the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuate the policies of the Act.
2. The alleged majority
At the time of the strike there were between 305 and 320 persons em-
ployed by the respondent within the unit which we have found to be
appropriate. At the time of the hearing approximately 337 persons
were employed in such capacities. The total number of the respond-
ent's employees who joined the U. A. W. both prior a!jd subsequent to
the strike and up to the time of hearing did not exceed 148 persons,
less than a majority of the total eligible. Since the Act compels an
employer to bargain only with the representatives selected by a ma-
jority of the employees in an appropriate unit, the allegations of the
complaint which allege that the respondent refused to bargain col-
lectively with the U. A. W. must be dismissed.
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 respondent de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
We have found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
524 NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act. We shall order the respondent to cease and desist-
from such interference, restraint, and coercion.
We have also found that the respondent has dominated and inter-
fered with the formation and administration of Detroit Coke Oven,
Employees Association. We shall, accordingly, order the respondent
to cease and desist from so doing, to withdraw all recognition from
the Association as a collective bargaining representative, and,
further, to disestablish the Association as a collective bargaining
representative.
VI. THE QUESTION CONCERNING REPRESENTATION
Although, as previously stated, there is no proof in the record that
a majority of the employees at the Detroit plant had joined the U. A.
W. at any time prior to the hearing, it is not clear how many other
employees may desire the U. A. W. to represent them for the purposes
of collective bargaining. This is particularly so, since the Association,
which we have found was dominated and interfered with in its for-
mation and administration by the respondent, must be disestablished'
as a collective bargaining representative.
We find that a question has arisen concerning the representation of
the employees of the respondent at the Detroit plant.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above, has a ,close, intimate, and substantial-
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VIII. THE DETERMINATION OF REPRESENTATIVES
The question which has arisen concerning the representation of em-'
ployees at the Detroit plant can best be resolved by the holding of an
election by secret ballot. Since the employees who formerly belonged
to the U. A. W. are now members of Gas, By-Product Coke and Chemi-
cal Workers. Local 12082, District 50, United Mine Workers of Amer-
ica, which has taken the place of the U. A. W. at this plant as the
organization affiliated with the C. I. 0., we will direct that the em-
ployees choose whether or not they wish to be represented for the pur-
poses of collective bargaining by Gas, By-Product Coke and Chemical
Workers, Local 12082, District 50, United Mine Workers of America.
Since we have found that Detroit Coke Oven Employees Association
DECISIONS AND ORDERS 525,
has been dominated and interfered with in its formation and adminis-
tration by the respondent, its name will not appear on the ballot.
Because of the length of time which has elapsed between the time
of the filing of the petition and the hearing, and between the hearing
and this Direction of Election, we will direct that the employees
eligible to vote will be those employees who were employed during
the pay-roll period immediately preceding the date of this Direction
of Election. We do not intend thereby to exclude from voting per-
sons who have been laid off between the time of the hearing and the
time of the election, as distinguished from persons who have quit or
been discharged for cause.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Union, United Automobile Workers of America,
Local 174, Gas, By-Product Coke and Chemical Workers, Local
12082, District 50, United Automobile Workers of America, and
Detroit Coke Oven Employees Association are labor organizations,
within the meaning of Section 2 (5), of the National Labor Relations
Act.
2. By its domination and interference with the formation and
administration of Detroit Coke Oven Employees Association, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (2), of the National Labor Relations
Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed by Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1), of the National Labor Relations
Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7),
of the National Labor Relations Act.
5. The respondent in the lay-off or discharge of 41 employees
on March 27, 28, and 29, 1937, did not discriminate in regard to hire
or tenure of employment thereby encouraging or discouraging mem-
bership in a labor organization, within the meaning of Section 8
(3), of the National Labor Relations Act.
6., The respondent has not refused to bargain collectively with the
representative of its employees, within the meaning of Section 8,
(5), of the National Labor Relations Act.
7. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondent at the Detroit plant, within
526 NATIONAL LABOR RELATIONS BOARD
the meaning of Section 9 (c) and Section 2 (6) and (7), of the
National Labor Relations Act.
8. All hourly paid employees at the Detroit plant of the respondent,
excluding office; clerical, and supervisory employees and watchmen,
•constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (a) of the National Labor
Relations Act.
ORDER
Upon the basis of the 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 respond-
ent, Semet-Solvay Company, Detroit, Michigan, its officers, agents,
=successors, and assigns shall:
1. Cease and desist :
(a) From dominating or interfering with the administration of
Detroit Coke Oven Employees Association, or with the formation
or administration of any other labor organization of its employees,
and from contributing support to Detroit Coke Oven Employees
Association, or any other labor organization of its employees;
(b) From 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
-concerted activities for the purpose of collective bargaining and
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 Detroit Coke Oven Employees
Association, as a representative 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 con-
ditions of employment, and completely disestablish Detroit Coke
Oven Employees Association as such representative;
(b) Post notices immediately in conspicuous places throughout
-the plant stating (1) that the respondent will cease and desist as
.aforesaid, and (2) that Detroit Coke Oven Employees Association
is disestablished as the representative of any of its employees for
-the purpose of dealing with the respondent concerning grievances,
labor disputes, rates of pay, wages, hours of employment, and other
conditions of employment, and that the respondent will refrain
from any recognition thereof; and keep said notices posted for a
period of at least thirty (30) consecutive days from the date of
,posting;
DECISIONS AND ORDERS 527
(c) Notify the Regional Director for the Seventh Region in writ-
ing within ten (10) days from the date of this order what steps, the
respondent has taken to comply herewith.
And it is further ordered that the complaint, in so far as it charges
that the respondent has engaged in unfair labor practices within the
meaning of Section 8 ( 3) and ( 5), of the National Labor Relations
Act, be, and it hereby is, dismissed.
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, 49 Stat. 449, and pursuant to Article III, Section 8, of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, it is hereby
DIRECTEn that, as part of .the investigation directed by the Board
to ascertain representatives for the purposes of collective bargaining
with Semet-Solvay Company, Detroit, Michigan, an election by secret
ballot shall be conducted within fifteen (15) days from the date of
this Direction , under the direction and supervision of the Regional
Director for the Seventh Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sec-
tion 9, of said Rules and Regulations, among those persons who were
hourly paid employees at the Detroit plant of the respondent during
the pay-roll period immediately preceding the date of this Direction,
excluding office, clerical , and supervisory employees , and watchmen,
to determine whether or not they desire to be represented by Gas, By-
Product Coke and Chemical Workers, Local 12082, District 50, United
Mine Workers of America, for the purposes of collective bargaining.
SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
June 7, 1938
On May 28, 1938 , the National Labor Relations Board, herein
called the Board, issued its Decision, Order, and Direction of
Election in the above-entitled proceedings. The Direction of Elec-
tion directed that "an election by secret ballot shall be conducted
within fifteen (15) days from the date of this Direction , under the
direction and supervision of the Regional Director for the Seventh
Region".
The Board , having been informed by the said Regional Director
that additional time will be required for the holding of said election,.
528 NATIONAL LABOR RELATIONS BOARD
hereby amends the Direction of Election issued on May 28, 1938, by
•striking therefrom the words, "within fifteen (15) days from the
date of this Direction", and substituting therefor the words, "within
thirty (30) days from the date of this Direction".
,SAME TITLE]
SECOND AMENDMENT TO DIRECTION OF ELECTION
June 25, 1938
On May 28, 1938, the National Labor Relations Board, herein called
.the Board, issued its Decision, Order, and Direction of Election in
the above-entitled proceedings. The Direction of Election directed
that "an election by secret ballot shall be conducted within fifteen
(15) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Seventh Region." On
June 7, 1938, the Board issued an Amendment to Direction of Elec-
tion in the above-entitled proceeding providing that the election
should be held within thirty (30) days from the date of the Direc-
tion of Election.
The Board, having been informed that Semet-Solvay Company,
herein called the respondent, has not complied with the Board's
order of May 28, 1938, but has petitioned the United States Circuit
Court of Appeals for the Sixth Circuit for review of the Board's
corder, and believing under these circumstances an election held at
such time as directed by the Direction of Election, as amended, may
not reflect a free choice of representatives of the employees involved,
hereby amends the Direction of Election, as amended, by striking
therefrom the words "within thirty (30) days from the date of this
Direction" and substituting therefor the words "at such time as the
Board shall hereafter direct after it is satisfied that there has been
.sufficient compliance with its order to dissipate the effects of the un-
fair labor practices of the respondent."
CHAIRMAN MADDEN took no part in the consideration of the above
Second Amendment to Direction of Election.