Solvay Process Co.

National Labor Relations Board - Board Decisions

Aug 15, 1940

26 N.L.R.B. 650 (N.L.R.B. 1940)

In the Matter Of SOLVAY PROCESS Co. AND WM. G. B. TFIOMPSON and
DISTRICT 50, UNITED MINE WORKERS OF AMERICA
Case No. R-1864:-De'eided August 15, 1940
Jurisdiction : 'chemical products manufacturing industry.
Investigation and Certification of Representatives : existence of question denial
of employment relationship; election necessary.
Unit Appropriate for Collective Bargaining : all employees of the Company who
were working pursuant to the agreements between the Company and an alleged
independent contractor, including laborers used in and around the plant of the
Company and longshoremen and stevedores working on the docks of the Com-
pany, but excluding clerical and supervisory employees.
Definitions
Alleged independent contractor who was formerly an employer of the
employees here involved, but who prior to the filing of the petition surren-
dered the contracts under which they were working and went out of business
with no intention of resuming it, held no longer an employer of such employees.
Company that owned and managed plant in which employees of alleged
independent contractor worked, was the sole source of the money with which
they were paid, and maintained control over employment to the extent of
sending men out of the plant if their work was unsatisfactory, indicating
which men it desired to have work on certain jobs, inspecting the work while
it was in progress, and in some cases directing the employees as to what was
to be done, held the employer of such employees.
Practice and Procedure
Petition dismissed as to one of two co-employers who was no longer an
employer at the time of the filing of the petition.
Mr. Charles Y. Latimer, for the Board.
Hunton, Williams, Anderson, Gay c Moore, by Mr. P. Justin
Moore and Mr. Edmund M Preston, of Richmond, Va.; Mr. David
A. Harrison, Jr., of Hopewell, Va.; and Mr. Harry S. Ferguson, of
New York City, for the Company.
Mr. Archer L. Jones, of Hopewell, Va., for Thompson.
Mr. Herman Edelsberg, of New York City, for the Union.
Mr. Robert J. Francis, of Petersburg, Va., for the Council.
Miss Grace McEldowney, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 12, 1940, District 50, United Mine Workers of America,
herein called-the Union, filed with the Regional Director for the Fifth
Region (Baltimore, Maryland), a petition, and on April 23 and May
3, 1940, first and second amended petitions, alleging that a question
26 N: L. R. B., No. 68.
650
SOLVAY PROCESS CO. 651•
affecting commerce had arisen concerning the representation of em-
ployees of Solvay Process Co. and-Wm. G. B., Thompson, .Hopewell,
Virginia, herein called respectively the Company and Thompson,
and requesting an investigation and certification of representatives'
pursuant to - Section 9 (c) of the National Labor Relations Act, 49.
Stat. 449, herein called the Act. On May 3, 1940, the National.
Labor Relations Board, herein called the Board, acting pursuant to
Section 9, (a) of the Act and Article III, Section 3, of National Labor
Relations Board Rules and Regulations-Series 2, as ' amended,
ordered an investigation and authorized the Regional Director -to
conduct it and to provide for an appropriate hearing upon due notice.
Pursuant to notice duly served upon the Company, Thompson,
and the Union, a hearing was held at Hopewell, Virginia; from May
13 to 29, 1940, before Edward Grandison Smith, the Trial Examiner
duly designated by the Board. During the hearing, the petition was
further amended on motion of the Union to enlarge the unit claimed
to be appropriate.' The petition; as so amended, designated as the
third amended petition, was served upon the parties and upon Solvay
Workers' Council, herein called ,the Council, •a labor organization
claiming to represent employees. directly affected by the investigation
under the amendment.- The Council filed a motion to intervene
which was granted by the Trial Examiner. The Board, the Company '2
Thompson, the Union, and the Council were represented by counsel
and.participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties.
At the opening of the 'hearing counsel for the Company, then
appearing specially, moved to dismiss the proceeding as to the Com-
pany on the ground, in brief, that the proposed bargaining unit did
not include any of its employees. At the close of the hearing he
again moved the Board either (1) to dismiss the petition on the grounds
that no question affecting commerce concerning employees of. the
Company had, arisen, that no appropriate unit existed within the
scope of the petition as finally amended, and that'the Board had no
jurisdiction to decide that the appropriate unit of employees of the
Company included any individuals who were not employees ' of the
Company or who were not employees within the meaning of the'Act;
or (2) to decide that the unit sought by the Union was
not an appropriate unit, and that .the appropriate unit of
employees of the Company, as showfi by the evidence, consisted
of certain employees on its pay roll, with specified exclusions
I The notion was granted with leave to any of the parties to move for such continuance of the proceeding
as might be necessary on account of the amendment , and to examine further any witnesses who had testified.
a The Company at first appeared specially, but filed a general appearance after the motion to amend the
petition was granted. ,
652 ' DECISIONS OF NATIONAL-LABOR ,RELATIONS BOARD
as, -described' in. the Xompany,'s motion.,, ,Counsel for, Thompson
moved, to â–º dismiss the' petition as: to . Thompson on the . ground that,
Thompson' was nottengaged. in business' at. the time of the,filing of the
petition:. Counsel' for theiCouncil,moved to dismiss the third amended
petition principally on the',ground that :the ,bargaining , unit sought,
was' not/;appropriate even, though itt might' be determined that em-
ployees of; Wm. G. ; B.. Thompson were employees•'of the, Company.
Ruling on!,these 'motions lwas,r`eserved'( for the determination of the
Board:+'lsThe, Company's motions.are'hereby denied and Thompson's
motion is grantedi for, the reasohs,,given' -below., , - The ,'motion 'of A he
Council, referring only to .the-'j"third amended petition,',', is in effect
granted; .in' so far as -ally' iilterest: of ,the Council is concerned, by, our
finding ,as Ito the -appropriate' unit: I . . • • t 111' • - : •
At, the close of the hearing,thetTrial,Examiner;granted'a motion of,
counsel,for the Union to conform,the notice of hearing and the-petitions
tb,,the; Iproof. '1fThe,:Trial, Examiner, made several other. rulings oni
motions' and, on obj ections; to ,the admission of : evidence: -The; Board
has :reviewed the rulings of the! Trial,Examiner,' .,and, finds that no
prejudicial- errors'were committed. 'The rulings 'are'hereby affirmed.
Pursuant,, to. requests . therefor, and, upon' . notice to. all parties,, a
hearing 'was ,held,before:the,Board in' Washington,,. D. ,C.,,on.July 18,
1940,:for the purposeiof oral argument'-: The Company and the Union
appeared find, participated. , The • • Company, , the Union, . and ; the
Council also filed briefs; which'ha -e been- considered by ;the Board?,,,,
' Upon, the • entire record., in the proceeding, the Board,tmakes ,the
following: - , •I= , .(t, ., ,I , ,
it )!I i l "t;ti; r+` } till t• ' FINDINGS OF. FACT-,-I
` 1 t: i n; , I.I TH'E EMPLOYERS
A; The business of the Company
(Solvay ,Process{ Co.,' an; affiliate; of ; Allied 'Chemical & -Dyes.Corpo--
ration,'is a New,York-corporation engaged, in the manufacture and
sale' of chemical; products. At its plant at Hopewell, Virginia, it, manu=
factures nitrogenous and 'other,; products; including -nitrate of, soda,
nitrogen solutions , and :chlorine.t 'The raw materials -used, in its manu-
factuPing, operations' are soda'lash; coke, and air.-,'During the 12
months'eiiding,May' 1, 1940;'over 75 pdr;cent of the-tonnage produced
at, the plant was shipped out of the State,-,and all, of the soda ash' and,-
75,per• cent^of•tthe coke used as raw materials,were shipped to,the plant
from•;points outside Virginia! ThefCompany admits that it,is engaged,
in, commerce lwithin•.the meaning of, the Act.',, . Il l . ' .. ,
The, Hopewell plant was, origin ally, constructed by Atmospheric
3 These facts were largely stipulated by the parties at the hearing • The parties also stipulated that there
might be included in the record the facts appearing in Matter of The Solvay Process Company and United
Chemical Workers Industrial Union No 64, 5 N L. R B 330 , in so far as they show that the plant is engaged
in interstate commerce , since the set-up of the Company is practically the same now as at the date of the
hearing in that case.
SOLVAY,,PROCESS co. 653
Nitrogeri, Corporation, herein called ''Anco, another affiliate of Allied
'Chemical, -.Dye Corporation. When Anco was dissolved in.1936 its
properties were acquired by the Company which had.leased the plant
yin 1934:
- Prior, to, March 8, 1940, some 1,400 production and maintenance
employees,, were employed at the plant, of whom approximately. one-
-half were listed on the pay roll of the Company and the-rest listed on
the'pay'roll of Wm.. G. B. Thompson. The number of Thompson men
at'work in, the plant on any one day varied widely} from a minimum
of 60 or 80 to a maximum of 400 or more. ' ,
-J3. The relationship between the, Company, and , Thompson
Thompson named in-the petition' as a co-employer with the Com-
pany; is' a' civil' engineer who prior to 1931 was employed at the
Hopewell plant in,- connection with construction work., In 1931 and
thdreaftei' he entered into a series of agreements, first with Anco and
later with the Company, for the performance of work which had previ-
ously been' done by-one Captain Swain. The agreements under 'hick
Thompson operated varied somewhat from year to' year,'but in' 1940
they were four iii number and covered the unloading of soda ash from
ships, the loading of bagged nitrate into ships, the unloading of Wk
'soda -from; railroad, boxcars, and the furnishing of-common labor. In
1935 Thompson wasalso employed' by the Company as, superintendent
of construction, receiving additional compensation in that capacity.
While the first Thompson agreements, in 1931 were entered into after
competi'tive • bid's 'and' in some cases covered only specific jobs, this
practice, was not • continued. Thereaf ter yearly, agreements, drawn
up in' the form' of purchase orders, or ' contracts, - by the Company,
were based on proposals submitted by Thompson, and fixed the general
terms urider 'which he was to, perform work when required.'
Under 'the loading, and unloading agreements, Thompson wtis -paid
oil, a' tonnage basis; and under the miscellaneous jobs agreement on a
"cost plus";basis:' To a large extent,,Thompson made use of•,the same
employees' for, the- work under both forms, of'agreement. ' Rates to be
paid' by Thompson for labor were, specified. If higher rates to 'the
laborers 'engaged by Thompson, became necessary, the 'Company was
to '-pay over to Thompson the additional amount., Likewise', the Com-
pany' agreed. to reimburse Thompson for any new taxes or'increases
in premium rates on workmen's compensation insurance, in connection
with 'the laborers engaged'by Thompson. He was -not liable for'ships'
demurrage charges for delays caused''by strikes 'oi' other- causes not
within his control.' Thus it 'appears'that under both types of agree-
ment Thompson was practically assured of a definite rate of return,
4 Thompson testified that the contracts were terminable at the Company's will, and that it could have
arranged to do the work itself without-protest from him, , but that neither he nor the Company had contem-
plated that the Company would go into competition , with , him. . ,
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
based on the' amount of work done by the laborers engaged through
him, while the Company assumed the risk of the more important of
any unexpected expenses which might be incurred by Thompson in
making arrangements for the labor to be used by the Company.' In
addition, Thompson was under no legal obligation to continue to en-
gage labor for the Company if he decided that the arrangement was
no longer profitable for him. Under the terms of his agreement, there-
fore, it appears that the position of Thompson in relation to the Com-
pany was more nearly 'that of an employment agent for the Company
than that of an independent contractor.
Operations under the contracts with the Company constituted
Thompson's sole business. His work was performed on the Company's
piers, on its chartered ships, or in its regular departments, with ma-
chinery which it owned and kept in repair and for which it furnished
fuel and power. His office was on its property, in a building shared
in part by the Company; 6 his telephone came through its switch-
board; he received•his mail in its care; it supplied without charge elec-
tricity and first-aid service; and he used pay-roll sheets on which the
name of the Company was printed.' Up to the time of the strike,
hereinafter mentioned, the same attorney represented both Thompson
and the Company.
Although Thompson employed a few supervisory employees who
took charge of loading and unloading the boats and supervised certain
other jobs, Thompson men were often sent into the Company's plant
on work not under the supervision of Thompson's supervisory force.
In spite of the contention of the • Company and Thompson that such
work required practically no supervision, the Company's own super-
visory employees' were admittedly present, signed the time cards of
the Thompson men, and, at the least, inspected the work of the men.
The number of supervisory employees engaged by Thompson did not
exceed 10,, although as.already noted, on some occasions'as many as
400 of the Thompson men were engaged in work ,in and about the
Company's premises at'the same time. Thompson employees testi-
fied that the Company foremen on various occasions told them what
to do, and sent them back to Thompson's office or out of the plant if
their work was unsatisfactory. Even on the loading and unloading
jobs, Company employees were present to inspect and check the
amount of work :done and to see that the Company's property was
not endangered.
Although there was no conclusive evidence of actual transfers be-
tween the respective pay rolls maintained by Thompson and by the
Company, many of the men were listed first on one and then on the
5 The Company 's interest in ascertaining Thompson's raid of return is apparent from the statements
prepared from time to time by its accounting office estimating his expenses and computing his profit.
e Thompson testified that the building was a former construction office which he had bought from the
Company for $120 and had remodeled to suit his purposes.
7 He testified these had been purchased from the Company.
SOLVAY PROCESS CO. 655
other. In some instances Thompson employees found notes on their
time cards in Thompson's office telling them to report to the Com-
pany's doctor for the physical examination required before an
employee was placed on the Company's pay roll; in other cases they
were told by the Company's foremen to report for work with the Com-
pany. There is no evidence that Thompson protested against such
interference with his labor supply.
For certain work the Company supplied Thompson with a list of
names of men whose work had been found satisfactory, and frequently
Company foremen asked for specific individuals. Thompson testified
that he complied with these 'requests if possible. Although he insisted
the Company could not discharge his men, he admitted that it did
not have to use anyone that he sent to work on a given job. Under
the foregoing circumstances, we find that supervisory employees of
the Company were in a position to, and did', exercise supervisory
authority over the Thompson employees.
C. Conclusions regarding the relationship of the, Company and Thompson
to the employees at the Hopewell plant
The present proceeding raises no question as to the employee status
of persons on the Company's pay roll." Nor is it denied as to those on
Thompson's pay roll, that until he went out of business on March 13,
1940, Thompson hired and discharged them, paid their wages, kept
their time cards, exercised supervision over their work,, carried work-
,men's compensation insurance, made unemployment compensation
payments, and was generally regarded as their employer by the
employees at the plant and by the residents of Hopewell.
We find that until March 13, 1940, Thompson was an employer of
the employees here -involved within the meaning of the Act.' He
testified and we further find, however, that on that date he surrendered
his contracts and went out of business, with no intention of resuming
it. It necessarily follows that he was no longer an employer at the
time of the filing of-the petition, and we therefore dismiss the petition
as to him.
The question remains whether the Company was also an employer
of Thompson's employees, as claimed by the Union. The Company
contends that it could not be; because'Thompson was an independent
contractor.1° Since the Company owned and, managed, the plant in
9 Although Thompson was named in the petition as a co-employer with the Company, the Union did not
contend that he was the employer of all the employees in the unit proposed in the third amended petition.
i Section 2 (2) of the Act provides that the term "employer" as used in the Act ":.. includes any person
acting in the interest of an employer, directly or indirectly ..."
i5 The facts in the present case are such that even at common law Thompson might be considered the
agent of the Company rather than an independent contractor. He admitted that he had never obtained a
license from the State to engage in business as a contractor. We said, however, in Matter of Sierra Madre-
Lamanda Citrus Association and Benjamin II. Betz, an individual doing business as Betz Packing Company
and Citrus Packing House Workers Union, Local No 20766, 23 N. L R. B. 143, that it was unnecessary to
decide whether the respondent Betz was an independent contractor under the State law, since both respond-
ents were employers within the meaning of the Act.
656' DECISIONS OF NATIONAL LABOR RELAT-IONS BOARD
which the employees worked , was the sole source of the, money with,
which Thompson paid them, and 'since it maintaine 'd control over
employment to the extent that it sent, men out of the plant if - their;
work was unsatisfactory , indicated which men it desired to have work.
on certain jobs, inspected the work while it was in ,progress ; an& in,
some cases directed the employees as to what was to • be done, we find'
that the Company was also an employer of the Thompson employees
within Section 2 (2) of the'Act.
f
II. THE ORGANIZATIONS INVOLVED,,
District 50, United MineWorkers of America, is a labor organization
affiliated with the Congress of'Industrial Organizations, whidh'admits
to' membership in its local union, Local No. 12103; employees workin'g
at' the Hopewell plant of the Com'p'any: =
'Solvay Workers' Council 11 is an unaffiliated labor `org'anization
admitting to membership all -employees ' of the -"Company'except
executives, supervisors,. and foremen'. It does not regard Thompson
employees as employees of,the Company and, has never sought mem-
bership among them.
III. -THE , QUESTION CONCERNING•'REPRESENTATION { ,.r
In 1937 the Union began its activities among the'emplo'ye'es at'the
Hopewell plant'by organizing Local N4:'12103, made iip`of employe'es'
on the Company's pay roll. Al approximately 'the same time the
Council was formed atnong the Company's employees. On Ma,rch'24;
1938, following the filing by the Union of a petition'for investigation
and certification of representatives,' the Regional Director of the
Board arranged a consent 'election in which the Union'laiid the
Council participated and which resulted' in the' selectioil'of' the
Council as the bargaining representative of employees'in'an agreed
unit of employees listed on the Company's pay roll. In' 1939 the
Union resumed its activities at the plant, 'exteriding'terribership not
only' to employees listed' on the Company's pay roll'but'also to those
on Thompson's pay roll. The latter were organized in a separate
division of the local union,' called the 'Thompson 'Divisioh'''Of Local
No. 12103.
Iii a letter to Thompson dated March 1, '1940, the"Thompson
Division claimed that it represented a majority of his employee's and
requested recognition as their exclusive bargaining' age I nt.12, He
replied on March 7 that he had no way of determining whether it was
11 On February '10, 1938, the Board dismissed a complaint which alleged that the Council was a company.
dominated union Matter of The Soicay , Process Company and United Chemical Workers Local , Industrial
Union No 16Z, 5 N L'R B 330 ,. q,,
12 The request had first been made on the preceding day in a conversation , during which the union repre-
sentative also claimed Thompson had discriminated against several of its members. , '
" ' ' SOLVAY PROCESS'CO. - 657
-entitled to such, recognition and suggested that, the question be
referred to the Board for determination. As he was, unwilling to
agree to a consent election, and the Union was unwilling to wait for a
Board hearing, a' strike was called, by the "executive board of the
Thompson Division local, beginning "on the night of March 8.13
Thereafter Thompson decided to cancel his contracts with the Com-
pany 'a,nd go' out of business; 'and.' on 'March '13 he informed the
Coinpany''of his decision, posted a notice of his decision t6' his em-
•ployces,f 'and on the following"day - p'aid' them off: On March ` 18 he
notified``'the''State 'Unemployment, Compensation Board and the
' Collector of Internal Revenue `that he had terminated his employment
with the Company.
On March 13 a field representative of the Union wrote the Company
stating that the committee and representatives of the Union were
a-vailable to `discuss a settlement of the strike. The Company .did
not reply , to this communication. A few , days later Thomas, B.
.Morton, , Commissioner of Labor of the State of Virginia, and Com-
missioner I Daly, of the Conciliation, Service of the United States
Department of Labor, went to.the office of the manager of the Com-
fpany to discuss the matter. In his conversation with them the
manager maintained that Thompson's employees were not employees
of, the Company. We have found, however, that such employees are
employees of the Company within the meaning of .the Act.14
At the time of the hearing none of the Thompson men had been re-
employed by the Company. Some of the jobs they had formerly
performed, had been, and others allegedly were to be, eliminated;
Some were being handled by employees on the Company's pay roll;
and much of the, work was being done by other contractors under
short-term contracts. Because boats discontinued docking at Hope-
well during the strike, loading and-unloading were being carried on at
Norfolk at added expense to the Company,. The manager admitted
that the Company would resume these operations at Hopewell if,
possible. Although it is not clear from the record whether the strikers
were still picketing'the plant, the temporary nature of the Company's
arrangements for carrying on the work they had (lone and its inability
to have boats dock at Hopewell demonstrate that the labor dispute
was still,current at 'the time of the hearing.15 Since Section 2 (3) of
the Act provides that "the term `employees' shall include . . ..any
individual whose'work has ceased,as a consequence of, or in connec-
tion with any current labor dispute," we find that the strikers have
retained"their status as employees of the Company.
^' 13 Although none of his men reported for work that night , Thompson testified that he was unable to tell
whether it was because the majority were members of the Union or because a minority forced them out.
'i4'See Section I, supra
Is' In Matter of Standard Insulation Company , Inc and Local #2111, chartered by A F of L 22 N. L R B
758, we stated , "Among the criteria for determining whether a strike continue in existence are the employ-
er's filling of positions left vacant by the strikers , his resumption of normal operations , and the continuance
of concerted strike activities by the workers
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that a question has arisen concerning the representation
of employees of the Company.
1V. 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 Company
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.
V. THE APPROPRIATE UNIT
In its second amended petition , on which the notice of hearing was
issued, the Union included in the proposed bargaining unit only
employees who had been carried on the, pay roll of Thompson."
At the hearing it further amended the description of the unit to
include also employees carried on the Company's pay rolL11 The
Company resisted both petitions on the ground that employees of
Thompson were not its employees . We have already found, how-
ever, in Section I above, that the Company is the employer , within
the meaning of the Act , of the employees formerly carried on the
Thompson pay roll. The Company resisted the third amended peti-
tion on the further ground that employees on its pay roll were already
represented by a labor organization with which the Company had a
bargaining agreement . The'Council joined in the latter contention.
'It appears that the first bargaining agreement between the Company
and the Council was negotiated in 1938 following the consent election
of March 24 , and covered the unit agreed on by the parties at that
time, from which Thompson employees were specifically excluded.18
New agreements for yearly periods were negotiated in 1939 and 1940.
16 The appropriate unit as described in the second amended petition included, "All employees hired to
work pursuant to the contract in force between Solvay and Thompson at or about the time of the strike.
March 1940 , comprising labor used in and around the plant of the Solvay Process Co , and longshoremen and
stevedores working on the docks of the Solvay Process Co , but excluding clerical and supervisory employees
17 The appropriate unit as amended at the bearing included , "All hourly paid production and mainte-
nance employees , whether carried on the pay roll of Thompson or Solvay, employed at the Hopewell plant
of Solvay Process Co , excepting those engaged in a supervisory capacity and excepting further clerical and
technical employees hired after March 8, 1940 , the date of the strike called by petitioner "
I s The relevant provision of the consent election agreementwasasfollows " 'Eligible voters' as used herein
to designate those i ligible to vote in the election shall be . (1) all production employees and all maintenance
employees at the Company's Hopewell plant as shown by the pay -roll list of March 8, 1938 , including those
temporarily absent for illness or other cause and watchmen , plus (2 ) those persons who (i ) were released from
the Company 's employment because of reduction in force after February 6, 1938, and before March 8, 1938,
and (n) had been employed by the Company continuously from February 7, 1936, to February 7,1938, both
inclusive, but shall exclude (a) executives and supervisory officers or employees , (b) office employees in the
research and engineering division of its development department , (c) clerks on the salaried roll in the main
office , and (d) employees of W. G B Thompson , an independent contractor doing work within said plant."
SOLVAY PROCESS CO. 659
Before the existing agreement was signed." the Company, requested
and received from the Council an affidavit, dated February 14, 1940,
which showed that it had 460 members.20_
As stated above, the Union made a motion, suggested by the Trial
Examiner, to include in the appropriate. unit employees carried on the
Company's pay roll as well as employees carried on Thompson's pay
roll. We have already noted that the Council and the Company are
now bound by a contract covering the employees listed on the Com-
pany pay roll. The Council further objected that differences in
working conditions, function, and skill rendered improper any lump-
ing, together of the two groups into a single unit. It appears that
employees listed on the Company's pay roll had more regular employ-
ment than those listed on the Thompson pay roll, were more skilled,
were more highly paid, and were obliged to undergo physical examina-
tions before being given employment. Such examinations were not
required of Thompson's men. The latter for the most part performed
longshore work and common labor of an intermittent nature, depend-
ing on the arrival of boats or irregular demands for labor at the plant.
The turnover among Thompson men was much higher than that
among the Company's employees because of the nature of the work
and the character of the employees.
In view of the, foregoing we find no basis for including both em-
ployees on the Company pay roll and employees on Thompson's pay
roll in a single unit at this time.
Aside from the question of the status of Thompson employees as
employees of the Company or as employees under the Act, no objec-
tion has been made to the unit described in the second amended
petition.21 The exclusions requested by the Union are those which we
have usually allowed in similar cases 22
We find that all employees of the Company who were working pur-
suant to the agreements between the Company and Thompson, includ-
ing laborers used in and around the plant of the Company and long-
shoremen and stevedores working on the docks of the Company, but
excluding clerical and supervisory employees, constitute a unit appro
priate for the purposes of collective bargaining, and that said unit
will insure to employees of the Company the full benefit of their
10 The contract was signed on March 11 , 1940, to become effective on April 1, 1940.
20 In January 1940 a petition had been filed with the Board by the Union, in which it claimed to represent
a majority of the Company 's employees in a unit practically the same as the one covered by the contract,
and on February 2, 1940, the Union wrote to the Company requesting recognition . At a conference there-
after held at the Regional Office of the Board, the Union produced cards showing a substantial interest in
the matter , but did not claim that they proved its majority status. The petitition was later withdrawn,
but at the hearing in the present proceeding counsel for the Union stated that it had been reinstated and was
then pending as Case No . V-R-430.
2, See footnote 16, supra.
22 The description excludes "clerical and supervisory employees " It is unnecessary to consider the
exclusion of "technical employees , watchmen , and company :police , and . . all employees hired after
March 8, 1940 , the date of the strike called by the petitioner ," as requested in the so-called third amended
petition , since none of the Thompson employees fall within such classifications
660• DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights''to• self-organization' and to collective bargaining and otherwise
effectuate the' policies of the Act. • '
VI. THE DETERMINATION OF REPRESENTATIVES
J Ii its second amended petition the Union 'claimed 'to represent' all
of the employees in'the unit which we have' found to be'appropriate.'
At' the hearing it 'introduced in evidence 761' authorization' cards, and,
requested certification on the record. The position of the' Corilpan'
as to certification on the record was not stated since the Company
at all times'relied on its contention that it was'not an' erhpl'oycr of
the men, listed on Thompson's pay` roll. A check by a field examiner
of the Board showed that of the 761' cards, '566 were dated between'
Janiiaiy' 1 and April 1, 1940; 195 were undated, and -588' bore the'
signatures of employees'on the pay rolls'of Thompson between'Janu'
ary 1 and March 12, 1940.23 We find that the question'conce'rning'
representation can best be resolved by. means of an election by secret'
ballot. In'view of the irregularity 'of the employment of the'en'ployees'
here involved, and in order not to' deprive any' of the'•interested
employees of the right to participate in the voting,' we shall' direct
that eligibility to vote shall be determined on the basis df the Thom.i'
son pay rolls during the period from January 1 through Maich 12,
1940.
Upon 'the basis of the above findings of fact and iipoli the entire.
record in the case, the Board makes the following: '
CONCLUSIONS OF LAW
1. Solvay' Process Co., Hopewell, Virginia, `is tl e employer of the'
employees here involved, who were'engaged in performance of 'W'o'rk"
under the agreements between the Comp'anv and Thompson, within'
the meaning of Section 2 (2) of the Act.
2. A question affecting, commerce 'has arisen concerning therepre-
sentation of employees of the ' Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7)'6f the National Labor Relations
Act. '
3. All employees of the Company ' who were working pursuant to
the agreements between the Company and Thompson, includingf
laborers used in and around the plant of 'the Company and longshore-
men and stevedores working on the docks of the Company, but exclud
ing clerical and supervisory employees, constitutwa unit appropriate
,for the purposes of collective bargaining, within t, fie meanuig of
Section 9 (b) of the Act. ' '
23 A list of Thompson 's Social Security cards for 1940 which was introduced in evidence showed that he
had employed 704 separate individuals , including supervisors , during that period
SOLVAY PROCESS CO. 661
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 , acid- pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby ' .
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective
bargaining with Solvay Process Company, Hopewell, Virginia, an
election by secret ballot shall be conducted , as early as possible but
not later than thirty (30) days from the date of this Direction of
Election, under the direction and supervision of the Regional Director
of the Fifth Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III , Section 9 , of said
Rules and Regulations, among all employees of the Company 'who
were working pursuant to the agreements between the Company and
Thompson and whose names appear on any of the pay rolls of Win.
G. B. Thompson from January 1, 1940 through March 12, 1940,
including laborers used in and around the plant of the Company
and longshoremen and stevedores working on' the docks of the Com-
pany, but excluding, clerical and supervisory employees and any
employees who have quit or have been discharged for cause since
January 1, 1940, to determine whether or not they desire to be repre-
sented by District 50, United Mine Workers of America, for the
purposes of collective bargaining.
323429-42-vol. 26-43