Semet-Solvay Co.

National Labor Relations Board - Board Decisions

May 28, 1946

68 N.L.R.B. 352 (N.L.R.B. 1946)

In the Matter of SEMET-SOLVAY COMPANY and UNITED STEELWORKERS
OF AMERICA , C. I. O.
In the Matter of SEMET-SOLVAY COMPANY and UNITED STEELWORKERS
OF AMERICA , C. I. O.
Cases Nos. 9-C-2132 and 9-R-1477, respectively.-Decided May 28,1946
DECISION
AND
ORDER
On June 11, 1945, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had engaged
in and was engaging in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto. In the
Intermediate Report, he further found that the respondent had interfered
with an election conducted by the Board among the respondent's em-
ployees to determine representatives for the purpose of collective bar-
gaining, and recommended that the election be set aside. Thereafter, the
respondent filed exceptions to the Intermediate Report and a supporting
brief. On March 7, 1946, the Board at Washington, D. C., heard oral
argument in which the respondent participated ; the Union appeared but
did not participate in the argument.
The Board has considered the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermediate
Report, the respondent's exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions, modifications, and
additions noted below:
1. The respondent contends that the Union's Objections to the Election
should be dismissed upon the ground that they were not filed within the
time limit established in the Board's Rules and Regulations, Series 3,
as amended, Article III, Section 10. The Trial Examiner found that,
while the Union was tardy by 2 days in filing its Objections, the re-
spondent was not prejudiced thereby, and he recommended that the
68 N. L. R. B, No. 41.
352
SEMET-SOLVAY COMPANY 353
Board "waive the technical requirement of time for filing." We find it
unnecessary to rule on the respondent's contention or on the Trial
Examiner's recommendation, inasmuch as our Order herein, setting aside
the election, is based not upon the Objections but rather upon our
finding hereinafter set forth that the respondent committed certain unfair
labor practices, as alleged in the complaint, which interfered with the
employees' exercise of a free choice of representatives in the election.
In view of the length of time which has elapsed since the election, we
shall dismiss the petition for an investigation and certification of repre-
sentatives, without prejudice to the filing of a new petition.
2. We concur in the Trial Examiner's conclusion that Assistant Master
Mechanic Allen's statement to employee Salyers regarding the latter's
role as watcher in the election, as set forth in the Intermediate Report,
constitutes a violation of Section 8 (1) of the Act. In reaching this
conclusion, the Trial Examiner discredited Allen's denial and found that
"Allen spoke substantially" as Salvers testified. However, the Trial
Examiner did not refer specifically in his Intermediate Report to addi-
tional related testimony hereinafter mentioned. As stated in the Inter-
mediate Report, Allen in his testimony admitted having a conversation
with Salyers before the election but gave a different and innocuous
version of it. Allen further testified, and this is the portion not specifi-
cally adverted to by the Trial Examiner, that he had later heard a rumor
that he had spoken to Salyers regarding his role as watcher in the election
as Salyers testified to at the hearing; that he (Allen) told Superintendent
Imes about the rumor and asked Imes what to do; that Imes told Allen
to adjust the matter with Salyers; that Allen then told Salyers what he
had heard; and that Salyers said: "No sir, you did not say that."
Although- Imes corroborated Allen in his testimony that Allen had told
Imes about the rumor and that he had told Allen to adjust the matter
with Salyers, Imes admitted that he never discussed the matter again
either with Allen or Salyers to determine whether Allen had, in fact,
confronted Salyers with the alleged rumor. Salyers denied that this
conversation with Allen ever took place.' Although the Trial Examiner
does not specifically advert to and resolve this conflicting testimony, it
is reasonable to infer that, in finding that "Allen spoke substantially as
testified by Salyers" and in discrediting Allen, he took the related testi-
mony into account and resolved the conflict with respect thereto in favor
of Salyers' denial. In any event, we find, as did the Trial Examiner,
that Salyers was a credible witness and we credit his denial. Allen and
Imes have been found by the Trial Examiner not to be credible witnesses
I Upon direct eximinatior, Salyers testified that the only conversation he ever had with
Allen as to union affairs was the one to which he (Salyers ) had testified , and upon cross-
examination he specifically denied Allen's testimony regarding the alleged subsequent con-
versation.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to other testimony, and we do not credit them with regard
to this incident.
3. We concur in the Trial Examiner's finding that the respondent
violated Section 8 (1) of the Act. Although, as the Trial Examiner
found, the pre-election letter of Superintendent Imes, "if it stood alone,
might have been regarded within the permissible bounds of free speech,"
the evidence reveals that it was an integral and inseparable part of an
unlawful campaign of interference and restraint which consisted of
statements by Superintendent Imes, Assistant Master Mechanic Allen,
and Foremen Owens and Armstrong, as set forth in the Intermediate
Report. Thus viewed, the letter stands upon no privileged ground 2 The
statements in the letter were charged with intimidatory overtones con-
veyed by the conduct of Imes, Owens, Allen, and Armstrong. As found
above, Allen warned Salyers in no uncertain terms that union adherents
would lose their jobs unless they abandoned union activity. Foreman
Armstrong's statement to employee King - "You be sure to vote against
the Union" - might reasonably have been interpreted by King as an
order which, if disregarded, entailed some risk of reprisal particularly
in the absence of any assurance against discrimination by Armstrong.
So too concerning the statement of Foreman Allen that he hoped that
a number of the employees most active in the Union would change their
minds about the election. Here again, in the absence of any express
assurance against discrimination by Allen, such an expression of "hope"
by their foreman could reasonably put these active unionists in fear that
it might be unsafe not to "change their minds about the election," par-
ticularly in view of Allen's prior threat to Salyers. In addition, by his
statement to employees Ross and Walters, union officers, that "they"
had "it in" for a "bunch" of the employees, following the complaint of
these employees that they were not receiving their share of available
overtime work, Foreman Owens implied that the respondent was penal-
izing employees for their union activity.3 Walters and Ross construed
the word "they" to refer to high company officials and Walters testified,
in effect, that, as he understood it, the statement was made by Owens to
explain why Walters and Ross were not receiving more overtime.4
2 See, for example, N L. R B v Trojan Powder Company, 135 F. (2d) 377; and N. L. R. B.
v American Laundry Machinery Co, 152 F (2d) 400 (C. C. A. 2).
' Like the Trial Examiner, we make no finding that the respondent did in fact unlawfully
discriminate against Ross and Walteis in regard to overtime work; but this does not render
Owen's statement any the less unlawful.
° The statement of Owens was not covered by the allegations of the complaint. However,
inasmuch as the issue was fully litigated at the hearing and the respondent has at no time
excepted to the introduction of evidence or the Trial Examiner's findings with respect to the
statement on the ground, we shall, and hereby do, adopt the Trial Examiner 's findings. See
Matter of Foid Motor Company, 57 N L R. B 1814, Matter of Fort Wayne Corrugated
Paper Company, 14 N. L. R B 1, enf'd 111 F. (2d) 869 (C. C A 7), Matter of Eagle-Packer
Mining & Smeltang Company, 16 ?; L R B 727, enf'd 119 F (2d) 903, 910 (C. C A 8)
SEMET-SOLVAY COMPANY 355
In its brief, the respondent argues that, even if its foremen made the
statements set forth in the Intermediate Report and above, the effect
of the statements was "nullified" by the pre-election letter and certain
alleged oral statements of the respondent's top operating official, Division
Superintendent Imes. The rule to be applied, argues the respondent, is
the one laid down in N L. R. B. v. T L Brandeis and Sons, 145 F. (2d)
556 (C. C. A. 8) : "When * * * the employer has clearly defined his atti-
tude of non-interference, the expressions of minor supervisors to the
contrary must be regarded as their individual views - they speak without
authority from their employer." We believe that this principle is inappli-
cable to the facts of the present case inasmuch as the record does not
disclose so clear a definition by the respondent of an "attitude of non-
interference" that the allegedly unlawful statements of its supervisors
must be regarded as their individual views. In support of its argument,
the respondent relies upon a statement of assurance against discrimina-
tion in Imes' pre-election letter and on certain alleged conversations
between Imes and two employees. With respect to the alleged conver-
sations, there is testimony by Imes that he spoke to two employees
separately on two occasions in which he assured them that their union
activity would not result in discrimination. He testified that one of the
conversations was with employee Salyers. However, Salyers credibly
testified that the only conversation he ever had with any representative
of tnanagement concerning union affairs was with Assistant Master
Mechanic Allen. The other Imes' conversation, according to him, was
with employee Walters. The Trial Examiner discusses this conversation
in his Intermediate Report and credits Walters' version of it in which
no mention is made of any assurance from Imes. With respect to Imes'
pre-election letter, there is the following single statement of assurance
in it :5 "Whatever the decision (in the election) you need fear no dis-
crimination or coercion." The respondent's position is that such a single
statement of assurance by a high management official embodied in a
letter, which itself was an integral part of an anti-union campaign, nullifies
the whole campaign of interference and restraint conducted by lesser
supervisory employees both before and after the sending of the letter.
Such a proposition is patently without merit. It can scarcely be said that
the respondent has by that single statement so clearly defined a policy
of non-interference that the anti-union and coercive statements of its
supervisors must be regarded as their individual views. If we were to
adopt the respondent's view, it would mean that an employer through its
supervisors could conduct a campaign of interference, restraint, and
'the statement in the letter denying a rumor that men were going to be "run off" by the
respondent was unrelated to union activities and hence does not constitute a statement of
a=surance.
696966-46-24
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercion against a union with impunity merely by sending to its rank
and file employees sometime during that campaign a letter containing a
single statement of assurance buried among paragraphs of anti-union
argument.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, Semet-Solvay Company, Ashland,
Kentucky, and its officers, agents , successors , and assigns shall:
1. Cease and desist from:
(a) Threatening to take, or intimating that it has taken economic
reprisals against its employees because of their membership in, or other
activities on behalf of, United Steelworkers of America, C. I. 0., or any
other labor organization ;
(b) Directing employees to vote for or against the above-named or
any other labor organization.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant at Ashland, Kentucky, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Ninth Region, shall, after
being duly signed by the respondent's representative, be posted by the
respondent immediately upon receipt thereof, and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places , including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the respondent to insure that said notices are
not altered, defaced, or covered by any other material;
(b) Notify the Regional Director for the Ninth Region (Cincinnati,
Ohio) in writing, within ten (10) days from the date of this Order,
what steps the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the election held on September 21, 1944,
among employees of the Semet-Solvay Company at its plant in Ashland,
Kentucky, be, and it hereby is, set aside, and that the petition for investi-
gation and certification of representatives in Case No . 9-R-1477 be,
and it hereby is, dismissed, without prejudice.
AND IT IS FURTHER ORDERED that the complaint be dismissed insofar
as it alleges that the respondent transported eligible voters to and from
the polling place on the day of the election.
MR GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
SEMET•SOLVAY COMPANY
APPENDIX A
NOTICE TO ALL EMPLOYEES
357
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not threaten to take, or intimate that we have taken, eco-
nomic reprisal against our employees because of their membership
in, or other activities on behalf of, United Steelworkers of America,
C. I. 0., or any other labor organization.
We will not direct our employees to vote for or against the above-
named or any other labor organization.
All our employees are free to become or remain members of
United Steelworkers of America or any other labor organization.
SEMET-SOLVAY COMPANY,
Employer.
By .............................
(Representative) (Title)
Dated ..... ................
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. James A. Shaw, for the Board.
Mr. Rockwell T. Gust, of Detroit, Mich, Mr. Harry S. Ferguson, of New York,
N. Y., and Mr. Howard Van Antwerp, of Ashland, Ky., for the respondent.
Mr. John J Brownlee, of Pittsburgh, Pa, and Messrs. Mitchell Slone, Arthur
G Warren, and Henry Johnson, of Ashland, Ky., for the Union.
STATEMENT OF THE CASE
On June 12, 1944, United Steelworkers of America, C. I. 0., herein called the
Union, filed with the Regional Director for the Ninth Region (Cincinnati, Ohio), a
petition for investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
On August 23, 1944, the National Labor Relations Board, herein called the Board,
issued its Decision and Direction of Elections, in which it directed that an election
by secret ballot be held to determine whether or not certain of the employees of
Semet-Solvay Company, herein called the respondent, desired to be represented by
the Union On September 21, 1944, pursuant to the aforesaid Direction of Elections,
an election by secret ballot was conducted by the Regional Director among the
employees in a unit found by the Board to be appropriate. The Tally of Ballots
issued on September 21, 1944, showed that a majority of the votes were cast
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the Union.' On September 26, 1944, the Union executed a Protest and
Objections to Election, and this was filed with the Regional Director on September
28, 1944. On January 17, 1945, the Regional Director issued his report on Objections
to Election, copies of which were duly served upon the respondent and the Union,
finding that the Objections raised a substantial and material issue with respect
to the conduct of the election and recommending that a formal hearing be held
on the Objections. On February 10, 1945, the respondent filed Exceptions to the
Regional Director's Report on Objections to Election, in which it moved to strike
the Objections to the Election and the Report thereon on the ground that the
Objections were not filed within five (5) days after the election as required by
the rules and regulations of the Board.2 On February 15, 1945, the Board issued
its Order Directing Hearing on Objections to Election "reserving to the Company
the right to raise the issue of the timeliness of the filing of said Objections."
On March 13, 1945, the Union filed a charge that the respondent had violated
Section 8 (1) of the Act. On March 16, 1945, the Board, pursuant to Article II,
Section 36 (b) and Article III, Section 13 (c) (2) of the Board's Rules and
Regulations - Series 3, as amended, ordered that the complaint case and the case
on objections to election be consolidated.
On March 20, 1945, the Board, by its aforesaid Regional Director, issued a com-
plaint against the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and Section 2 (6) and (7) of the Act. Copies of the complaint,
accompanied by the charge, Order Directing Hearing on Objections to Election,
Order Consolidating Cases, and Notice of Hearing of Consolidated Cases, were
duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint as amended at the
hearing, alleged in substance that the respondent, commencing on or about August
23, 1944, (a)-attempted to persuade employees selected by the Union not to serve
as observers for the Union at the election, (b) transported eligible voters to and
from the polling place on the day of the election, (c) mailed to its employees shortly
prior to the election a letter setting forth its opposition to the Union, and urging its
employees to vote against the Union, and (d) urged and attempted to persuade
its employees to vote against the Union in the election 3
The respondent, by its answer, filed on March 26, 1945, denied the commission
of the unfair labor practices alleged.
Pursuant to notice, a hearing was held on April 12 and 13, 1945, at Ashland,
Kentucky, before the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. The Board and the respondent were represented by counsel and
the Union by representatives. All parties participated in the hearing Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the close of the hearing,
Board's counsel moved to conform the complaint to the proof as to names, dates,
and places. The motion was granted. Opportunity was afforded the parties to argue
' The tally showed the following results
Approximate number of eligible voters .... . ............ . .. ... 206
Valid votes counted ................... ..... . ... .............. ........... 198
Votes cast for United Steelworkers of America, C. I. 0........... 93
Votes cast against participating union ...... .... . . ............ l0i
Challenged ballots ......................... . ............ ....... . .... 0
Void ballots ..................... ..... . ... . ................... ....... 2
Article III, Sec. 10.
a The fourth allegation was added by motion granted at the bearing at the close of the
Board's case.
SEMET-SOLVAY COMPANY 359
orally before the undersigned and to file briefs with the undersigned. All declined
the opportunity.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation with its principal offices and place
of business in New York, New York. It operates coke plants throughout the
country, the one here concerned being located at Ashland, Kentucky, where it
manufactures coke and by-products of coal. During the 12 months preceding the
hearing, 50 percent of the principal raw materials used by the Ashland plant
was obtained from States other than Kentucky, and during the same period,
approximately 20 percent of the finished products produced at the Ashland plant
was shipped to points outside the State of Kentucky. The respondent admits that
it is engaged in commerce within the meaning of the Act
II. THE ORGANIZATION INVOLVED
United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Background
The employees of the respondent's plant at Ashland, Kentucky, herein called
the plant, have never been organized. An attempt to organize the employees was
made by District 50 of the United Mine Workers in 1943. About that time
Guffey Walters applied for reemployment upon his release from military service
Superintendent Conklin, since superseded by Superintendent Darr, asked Walters
what the boys in the Army thought about unions and the way "the boys had
been acting around these plants."4 Early in June 1944, the charging Union was
organizing. About June 1, 1944, Alonzo King, whose last employment had been
in Detroit, applied to Assistant Superintendent Dobson for employment. Dobson
asked King if he belonged to a union. King replied that he did not. Dobson asked
him if he had belonged to a union in Detroit and King said that he had but that he
* The quoted words are taken from Walters' testimony Conklin did not testify.
In 1943 the Board conducted an election among the employees in which District 50 of the
United Mine Workers was on the ballot. The vote was against that union According to
witness Denver Elswick, who at that time was a foreman at the plant, Frank Norton, then
assistant superintendent, following that election, showed him a bock in which employees' names
were listed and remarked, as he scratched a name from the list, "There is another good
C I. 0. vote gone." Elswick apparently inferred that the list was one of union members.
Norton denied the statement, although he admitted he had a pay-roll list of all the employees
While the undersigned believes Norton may, in the presence, of Elswick, have scratched a
name from the list, the undersigned concludes, from the fact that the incident occurred after
the District 50 election, from Elswick's confusion of the C. I. 0. with District 50, from
the fact that Norton could have crossed out the name of a severed employee, and from
Norton's testimony, with which the undersigned was favorably impressed, that Elswick mis-
interpreted the incident, and therefore the undersigned credits Norton's denial.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no longer belonged to one. Dobson said that he did not want to hire anyone that
belonged to a union, that there was no union there, and that King did not have
to pay to work there.5
2. The respondent' s pre-election conduct
(a) Statements of supervisors and ofictals-in general
Division Superintendent Imes was well informed with regard to the rights guar-
anteed to employees under the Act. Both he and Superintendent Darr had, in fore-
men's meetings, instructed the foremen regarding those rights, but the foremen
were not instructed to refrain from discussing the Union with the employees.
Witness Denver Elswick, who until after the election was a foreman with the
respondent, but who at the time of the hearing was no longer in the respondent's
employ, testified that at foremen's meetings the foremen had been instructed to be
very careful of what they said to employees about the Union. He also testified
that Imes had instructed him how to approach employees to talk to them about
union subjects, and that Imes had instructed him to be careful of what he said
in influencing the employees not to join the Union. He quoted Imes as saying that
there was more than one way of getting to a man's heart to get information out
of him. This statement was denied by Imes, who testified that Elswick had twisted
the facts. While the undersigned believes that Elswick may not have quoted Imes'
specific words accurately, he believes that the foremen understood from what Imes
said that they were privileged to question the employees regarding their attitude
toward unions and by use of careful language to dissuade them from joining unions .6
This conclusion is reached not merely from Elswick's testimony but from the
improper statements which supervisors made to employees, hereinafter related,
which apparently give expression to such an understanding, and from all the
evidence.
It was Imes' belief that only dissatisfied employees joined unions and that if
the foremen treated their men well and "lived close to them" the employees would
not desire a union. Imes also believed that the respondent had done and would do
as much or more for the employees than a union could do. He expressed such
views to employees and permitted the foremen to do likewise.
About 10 days before the election, in the carpenter shop, Imes asked employee
Guffey Walters what the employees thought about the Union, saying that he himself
could not understand how any outsiders could do any more for the men than the
respondent could do for them.? A few days later, in the plant car barn, Imes had
i The foregoing finding is based on King's testimony. Dobson denied the statements attributed
to him by King. King was hired but never joined the Union and was apparently disinterested.
The undersigned regarded King as a credible witness and credits his testimony . King was
interviewed by Superintendent Darr after his interview with Dobson and King testified
(and Darr denied) that Darr told him he had to watch whom he hired and that he did not
want to hire any union members. King's testimony is credited. The complaint contained no
allegation that would cover the foregoing statements of Dobson and Darr as violations of
Section S (1) of the Act, and although Board's counsel was given an opportunity to amend
the complaint at the hearing following the giving of King's testimony, the amendment there-
after offered and allowed did not cover these statements. The undersigned, therefore, makes
no finding that they constitute unfair labor practices. The conclusions herein reached are not
influenced by the abote findings and the incident is mentioned here solely as background.
E Foreman Arthur Greene testified for the respondent that the foremen had been instructed
"not to discuss it [the Union] with anyone unless someone come to you and then just as light
as you could, be sure that you didn't say anything to discriminate you or them."
7 This finding is based on Walters' credited testimony. Imes testified that he did not
remember a conversation in the carpenter shop with Walters but admitted that he had, in
another conversation testified to by Walters, made such a statement.
SEMET-SOLVAY COMPANY 361
another conversation with Walters in which he asked Walters what he thought
about the election. Walters told Imes he thought it would go over. Imes, according
to Walters' credited testimony, said he did not think it would, that he would not
give up until the last vote was counted, and that he did not think the men would
let him down.8
About 2 months prior to the election Foreman Lawrence Leach remarked in
the presence of several employees that he could not see how the employees figured
that anyone outside could do anything for them like they could on the inside.
(b) Persuading employees not to serve as election observers
for the Union, or to abandon the Union
A week before the election, Assistant Master Mechanic John Allen spoke to
employee Herbert Salyers, who was president of the Union's local, and said he
understood Salyers was to be a watcher in the election. When Salyers admitted
it, according to Salyers' testimony, Allen said, "I'd rather you wouldn't have
nothing to do with it. Drop out of it. When this war is over and these boys all
come back from the Army, you boys will, all that have worked in the election and
voted for it, be the first to go out the gate." Allen admitted having had a conversa-
tion with Salyers before the election but specifically denied the statements attributed
to him. According to Allen, he asked Salyers what he thought about the election
and Salyers said he had no idea about it; Allen then said he heard that Salyers
was to be a watcher at the election and Salyers replied that he did not know
whether or not he would be ; Allen said, "Well, I heard you were," and "Herb, that
indicates that I have fallen down on my job if you want to get somebody else to
take up your grievances and intercede between the authorities and yourself
besides me. It indicates that I haven't treated you right." Allen testified that he
told Salyers it was his privilege to do whatever he pleased at the election The
undersigned finds that Allen spoke substantially as testified by Salyers and that
if Allen did, as he testified, tell Salyers it was his privilege to do whatever he
pleased at the election, the effect of it was nullified by his attempt to influence
Salyers to give up his desire for union representation
A day or two before the election, in a conversation about the Union which
Allen opened with Walters, who was the vice president of the local of the Union,
Allen named about five employees, including Salyers and Frank Ross, treasurer
of the local, and said that he hoped they would change their minds about the
elections
(c) Imes' pre-election letter to the employees
Under date of September 18, 1944, Imes sent to all of the employees the follow-
ing letter:
You are of course aware of the fact that an election is to be conducted among
the men of our Ashland plant under the supervision of the National Labor
Relations Board. The election is for the purpose of determining whether you
and the rest of our men do or do not desire an organization, known as C. I. 0.,
to represent them in dealing with the Company on various matters pertaining
to their work. This plant went through a similar experience about a year ago
when another organization was rejected for the same purpose by the men in
this plant through a clean cut expression of their sentiment by secret ballot.
" Imes denied having made this statement. The undersigned does not credit his denial.
9 Allen denied having had this conversation with Walters. The undersigned does not credit
his denial.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I want it to be crystal clear to you that my only desire in this as in all
matters is to arrive at a result that will make for the betterment of conditions
for all of us. I come out to this plant daily and I perform my assigned task
for exactly the same reason you do which is to provide a living for my family
so we all have the one common interest above everything else and must be
completely dependent on each other to best achieve that common interest.
Even though all of us as employees of the Company do have the same
interest in anything affecting the plant it has been decreed that some of us,
including myself, do not have a vote in a matter such as this. However, I want
to assure you that I am perfectly content to abide by your judgment after
you have carefully thought out the entire question and arrived at a decision.
Whatever the decision, you need fear no discrimination or coercion.
In order to arrive at that decision it is important that all facts concerning
the matter be known and considered Some of our men who have not been
here so long should know more of the facts about their Company and it is
my desire to so inform them of things which they can readily substantiate by
talking to the older men.
The Ashland plant was built in 1913 and operated continuously until Sep-
tember, 1932, when it was shut down for eleven months It was started again
in July, 1933, and except for one month due to flood in 1937 has operated
continuously to date. The one shut down in 31 years which occurred in 1932
was due to two things: the majority of our production was directed to one
customer and when that customer did not take our production, it took some
time to make the necessary arrangements for wider distribution of that
production.
Since that time we have spent a lot of money in further improvements.
In 1935 we built complete new coke handling facilities with further improve-
ments in 1943 . In 1937 and 1938 we built 12 additional coke ovens and fully
modernized our plant from the standpoint of power generation, pumps and
motors and at that time also provided flood protection to various parts of the
plant. In 1939 we installed facilities for receiving coal and shipping coke by
river and in 1940 purchased our own towboat to operate along with our fleet
of barges. In 1944 we extended our gas system to provide for the outlet of
considerably more gas. These and many other improvements represent the
investment of hundreds of thousands of dollars and our Company's belief
in the future of the Ashland plant which should mean our own belief can be
no less than that.
Unfortunately, while we are discussing the future, we are forced to recognize
the fact that from time to time a malicious story is spread in some quarters
that various men are going to be "run off". Ask any man who has worked
with me or who has become acquainted with Jim Darr if we are the type
to ever "run off" any man.
An all important question and one about which the truth is twisted consid-
erably by some people is wages. As you know, your Company's policy in this
respect has always been very good and this plant has alv ays been the leader
in this area in the granting of increases until wages were frozen by Presidential
Order in October, 1942. During the eighteen months prior to that time there
were four separate increases in this plant amounting to more than 30 per cent
on the average.
Executive Order 9250 which was issued by the President October 3, 1942,
was designed , and I quote from the Order, "in order to control so far as
possible the inflationary tendencies and the vast dislocations attendant thereon
SEMET-SOLVAY COMPANY 363
which threaten our military effort and our domestic economic structure, and
for the more effective prosecution of the war." Since that time numerous
unsuccessful attempts have been made to break down the order and the
purpose for which the Government intended it to protect you and me. It
would be ridiculous for me or any other person or organization to promise
you that wages could be affected in any way which does not comply with the
Government's announced stabilization policy. If that policy is changed, I
believe you'll find that generally speaking you will fare as well as the employees
of other manufacturing plants in Ashland, including those where there are
unions You can best judge this by your experience to date.
There are other things which reflect the attitude of your Company over the
years The vacation plan which was set up several years ago should be com-
pared with others in Ashland as it is outstanding for its liberal provisions
The same is true of the insurance program in which we are all participating;
also the experience in 1937 when many men were unable to work because of
the flood but received their normal income anyway, the modern locker room
facilities installed two years ago, the firm policy of tolerating only fair and
square management-all of these were completely voluntary and without cost
to you of union representation , and are a fair measure of the position you can
expect your Company to take in any matter that affects the welfare of the plant.
For several years in this plant it has been a rule that no relative of any
foreman could be hired Perhaps that has worked a hardship on some very
good men but we feel it is necessary in order to be sure of no favoritism
Your Company is keenly desirous of finding men on the plant who by their
loyalty and proven ability are able to merit promotion when it is available,
There is not a foreman on this plant who did not start at the bottom many
years ago. Jim Darr was cleaning and loading tank cars at the old Dunbar
plant in 1920, I was a sample boy at Ironton in 1922, the men I report to
traveled the same road and your management is composed of men who are
very much interested in the men who do the jobs now that they once did.
There are not many places where such a situation exists and where so much
effort is made to provide equal opportunity for all.
The matter of representation does not seem to have been a difficult one
as I look back over the years During those years we certainly talked out all
our problems ; whether it was working conditions, how to improve operations,
where to find the most rabbits, what to name the new baby or whether the
Cubs were as good as the Reds, all those many things in which we were
mutually interested; and none of us ever experienced the so-called "wild-cat,
unauthorized" affairs which have plagued the country for so long and our own
city only recently. I know that we all thoroughly enjoyed our own kind of
association and I also know that with Jim Darr and Jobi Dobson we have all
the makings for continuing that experience.
After you have studied all the facts at your command, your choice in this
matter should not be difficult. On the one hand you know what to expect from
your Company, based on what it has done in the past ; you know what to
expect from me, based on the years we spent together On the other hand,
if you study the facts, you should know what to expect from an outside organi-
zation if you choose to be represented by it
You may have expressed a choice in this matter before now and perhaps
you have had a change in opinion from time to time . It does not matter on
which side of the question you may have been before you enter the voting
booth because only there do you make the final choice to exercise your free
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right and satisfy your own conscience as you see fit. Because this election will
have an important bearing on whether we have to change our method of
talking out our problems. I only ask that you and every eligible man get out
and vote in a free and democratic manner, and then after you have settled
this matter I hope we will continue to move together toward our common goal.
(s) HAROLD IMES.
Imes testified that he was influenced in his decision to write such a letter by the
fact that he had heard certain rumors, to wit : that it was being said that the
respondent was going to "run off a bunch of old men"; that the only way to get
a wage increase was to join the Union because the respondent would not give one;
and that there was favoritism shown by management. The undersigned finds that
there were statements made by the Union or union sympathizers of this general
character,10 and that Imes believed they were untrue although the Union had
cause to believe they were true.
(d) Urging employees to vote against the Union
On the day of the election when employee King reported to work his foreman,
Samuel Armstrong, asked him if he had voted yet and King replied in the negative.
Armstrong told him he could vote before he started work According to King's
credited testimony, Armstrong added, "You be sure to vote against the Union."11
(e) Transporting workers to the polls
Elswick testified that the foremen were instructed at a foreman's meeting that
they could bring voters to the plant to vote. Witness Herbert Clark testified that
on the day of the election he saw Foreman Charley Walker drive into the plant
twice, each time accompanied by an unidentified man, and that he saw Walker
drive out once accompanied by employee James Barker. Comment is made below
as to this testimony.
3. The respondent's post-election conduct
A few days after the election, Imes addressed the foremen in a meeting and,
after commenting on the fact that the Union had lost the election by a vote of
105 to 93, told them that that indicated 93 men at the plant were not satisfied with
their type of management, that some of the men did not like working conditions
or something that affected their employment, and that he wanted the foremen
to live close to their men, handling their grievances and suggestions. He cited
Foreman Arthur Greene as a foreman who was doing a good job of handling
his department and keeping his men satisfied and recommended him as setting an
example of a foreman living close to his men.12
10 There was no substantiation that the second rumor took the form testified by Imes, but
the Union in a circular told the employees that through its efforts their wages, hours, and
working conditions would be among the best in the major steel industries.
li Armstrong denied the quoted statement although he admitted the rest. King appeared to
testify under subpoena for the Board. As previously stated, King was not a member of the
Union and appeared to the undersigned as an honest and disinterested witness.
11 Elswick testified that Imes remarked that the vote was too close to be comfortable and
that "if we would all work like Arthur Greene, his department went over ninety per cent."
Imes denied having made the statements attributed to him. While the undersigned does not
regard Elswick's testimony as dishonest, he believes that Elswick's recollection of details
was imperfect, and as to the language attributed to Imes in this address the undersigned
favors Imes' account. Even as related by Imes, however, his remark about Greene, coupled
with the reference to the union men being dissatisfied, gives rise to the inference that, if the
foremen handled their men like Arthur Greene, they would not want a union. This is related
not as a violation of the Act but solely as indicating that the respondent was relying on the
foremen in its effort to avoid organization.
SEMET-SOLVAY COMPANY 365
Sometime after the election, employees Frank Ross and Guffey Walters com-
plained to their foreman, Lincous Owens, that they were not receiving their share
of the available overtime work. Owens did not give them any explanation but 1 day
approached Ross and said to him, according to Ross, that "they" had it in for
"a bunch" of the employees.13
4. Conclusions
The sum of the evidence indicates that the respondent conducted a cautious but
persistent campaign to influence the employees not to join a union. Imes' pre-
election letter, which, if it stood alone, might have been regarded as within the
permissible bounds of free speech, fitted into the pattern of that campaign. The
language of the letter is, on the surface, innocuous, yet by innuendo which could
not escape recognition by a person of average intelligence, it suggests to the
employees that unions are undesirable14 and that, by seeing the "facts" as the.
respondent sees them, those previously in favor of the Union should and could
change their minds when they voted in the election. Whether or not the denial of
alleged rumors was justified in this case, Imes' letter was not limited in its purpose
to a denial of unfounded rumors. Its primary purpose, apparent from the context,
was to discuss the election, to convince the employees that a union could accomplish
nothing for the employees that the respondent could not provide, and subtly to
suggest to the employees that the issue was a choice of representation by the
Union or by the respondent. Such an issue is obviously a false one 15 Letters such
as this, though sanctioned by the Courts when standing alone16 have, when
coupled with other circumstances, been held to constitute interference with the
rights of employees guaranteed in Section 7 of the Act.17 In view of the surround-
ing circumstances in this'case, the undersigned concludes and finds that Imes' letter
to the employees shortly preceding the election did constitute interference, re-
straint, and coercion within the meaning of Section 8 (1) of the Act.
The undersigned further finds that, by the statements of Imes, Allen, Owens, and
Armstrong, the respondent did interfere with, restrain, and coerce its employees
in the exercise of those rights in violation of Section 8 (1) of the Act.
With reference to the transportation of employees to the polls, which, under
certain circumstances, has been condemned,18 the undersigned regards the evidence
" Owens denied having made the statement. Ross' testimony was corroborated by Walters
who was standing unobserved behind a machine that Ross was working on when Owens
made the statement testified to The undersigned credits Ross' and Walters' testimony. In the
period from October 1, 1944, to January 1, 1945, the record shows that of the men in Owens'
depaitment, employee Harold Green, a non- union man , earned the most overtime pay, $112.55.
The next highest was $79 66 earned by a union member, William Gates Green performed the
same type of work as Ross and Walters. Other evidence was adduced from which it might have
been inferred that after the election Walters was discriminatorily assigned a type of work he
could not tolerate following his return to work after a period of illness. The complaint did not
allege such discrimination and Board counsel and the union representative stated that they did
not contend that this assignment was discrimination and the undersigned makes no finding
thereon
14 The allusion to "wild-cat, unauthorized affairs" suggests that this is a symptom of unions
generally and that the respondent had escaped such "affairs" because there was no union at its
plant. In the paragraph immediately following that making reference to such affairs , the letter,
after referring to what the employees knew they might expect from the respondent , suggests
that there are certain unrevealed "facts" (this was underscored) which should cause the
em,ioytes to expect something of an unfavorably contrasted character from the Union.
is N. L R. B. v. Sunbeam Electric Manufacturing Co,,, 133 F. (2d) 856, 860 (C . C. A. 7).
is N. L. R. B. v. American Tube Bending Co.# 134 F. (2d) 993 (C. C. A. 2), cert. den. 320
U S. 768.
N L R B v. Trojan Powder Co, 135 F (2d) 337 (C. C. A. 3), cert . den 320 U S 768,
iP Big Lake Oil Co, v N L. R. B., 146 F. (2) 967 (C. C. A. 5).
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this case as inadequate to disclose an unfair labor practice or basis for objection
to election . While there is evidence that foremen were told that they could
transport employees to the polls , it does not disclose whether this was limited to
those whom the foremen might choose to transport or that they were allowed to
discriminate in regard to which employees they might transport , and the evidence
that one foreman did transport employees to the polls was inconclusive since the
only employee recognized as having ridden with a foreman was not shown to have
been taken to the polls. It was not even shown where the polls were with reference
to the direction the foreman was driving that employee . On the facts of this case
it is not reasonable to infer that the employees , even the one who rode with the
foreman, away from the polls for all that appears in the record , might have been
influenced in any way . The undersigned therefore finds that the evidence did not
sustain the charge made in the third ground listed in the Objection to Elections'9
and in clause (b) of paragraph 4 of the complaint concerning transportation of
employees to the polls.
In view of all the circumstances found, however, t'je undersigned concludes and
finds that the respondent did not maintain the standard of neutrality required of
it in respect to the election and that the remaining charges of the complaint and
of the Objections to Election were sustained
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with its operations described in Section I above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and such of them as have been found to be unfair labor practices tend to lead
to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and that it take
certain affirmative action which the undersigned finds will effectuate the policies
of the Act.
The undersigned will also recommend that the objections to the election be
sustained and that the results J)f the election be set aside.20
It will be recommended that the complaint be dismissed insofar as it charges the
respondent with having transported eligible voters to and from polling places on
the day of the election.
19 The grounds listed in the Protest and Objection to Election are.
(1) Sending out a letter to all employees of Company, dated September 18th, 1944,
and signed by Harold Imes, official of the Company. Photostatic copy of this letter is
attached
(2) Through its foreman, John Allen, the Company tried to intimidate and coerce an
observer appointed by the Union, in an effort to get him not to serve as watcher in the
N. L. R. B. election. Copy of affidavit to this effect is attached.
(3) Through its agents or employees, the Company hauled employees from outside the
plant into the plant on election day. Copy of affidavit to this effect is attached.
20 The respondent excepted to the fact that the Protest and Objection to Election was filed
on the seventh day after the election instead of within 5 days after the election as required by
the rules of the Board The undersigned finds that the respondent was not prejudiced by the
2-day tardiness of the Union in filing its objections, and, in view of the fact that the objections
were substantial, recommended that the Board waive the technical requirement of time for
filing
SEMET-SOLVAY COMPANY 367
Upon the basis of the above findings of fact, and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
4. The respondent did not interfere with, restrain, or coerce its employees as
alleged in clause (b) of paragraph 4 of the complaint which charged the respondent
with having transported eligible voters to and from the polling place on the day
of the election.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Semet-Solvay Company, Ashland,
Kentucky, its officers, agents, successors, and assigns shall
1. Cease and desist from in any manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist United Steelworkers of America, C. I 0., or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act:
(a) Post at its plant at Ashland, Kentucky, copies of the notice attached hereto,
marked "Appendix A." Copies of said notice , to be furnished by the Regional
Director of the Ninth Region shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the respondent to insure that said notices are not altered,
defaced, or covered by any other material,
(b) Notify the Regional Director for the Ninth Region (Cincinnati, Ohio) in
writing within ten (10) days from the receipt of this Intermediate Report what
steps the respondent has taken to comply herewith
It is further recommended that unless on or before ten (10) days from the
(late of the receipt of this Intermediate Report the respondent notifies the said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
It is further recommended that the Board sustain the objections to the election
which was held on September 21, 1944, and set aside the results thereof.
It is further recommended that the complaint be dismissed insofar as it charges
the respondent with having transported eligible voters to and from the polling
place on the day of the election
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board , Series 3, as amended , effective July 12 , 1944, any
party or counsel for the Board may within fifteen (15) days from the date of
the entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of said Rules and Regulations, file with Board, Rochambeau Building,
Washington 25, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or
brief, the party or counsel for the Board filing the same shall serve a copy thereof
upon each of the other parties and shall file a copy with the Regional Director.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten ( 10) days from the date of the order transferring the case to
the Board.
JAMES R. HEMINGWAY,
Trial Examiner.
Dated June 11, 1945.