The Carborundum Co.

National Labor Relations Board - Board Decisions

Nov 7, 1941

36 N.L.R.B. 710 (N.L.R.B. 1941)

UNITED STATES OF AMERICA
BEFORE THE' NATIONAL LABOR RELATIONS BOARD
In the Matter of THE CARBORUNDUM COMPANY . and UNITED MINE
WORKERS OF AMERICA, DISTRICT 50, AFFILIATED WITH THE C. I. O.
Case No. C-1966.-Decided November 7, 1941
Jurisdiction : abrasive and refractory material manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion. refusal' to accord the union "members
only" recognition after according such recognition to an inside union; expres-
sions of hostility toward outside unions.
Company-Dominated Union: failure of respondent to disestablish admittedly
dominated "plan"; promotion of successor union by officers and members of
old Plant Council of "Plan"-support: allowing the successor union to dis-
tribute ballots and engage in other union activity on company time and
property ; granting of "members only" contract, and subsequently, exclusive
recognition contract to dominated union, while withholding parity of treat-
ment to outside union.
Remedial Orders : employer ordered to disestablish dominated organization and
cease giving effect to contract with it.
Mr. Edward Flaherty, for the Board.
Franchot, Runals, Cohen, Taylor & Rickert, by Mr. Edward E.
Franchot, of Niagara Falls, N. Y., for the respondent.
Mr. George E. Carrie, of Niagara Falls, N. Y., for the C. E. U.
Mr. Herman Edlesberg, of Washington, D. C., for the Union.
Mary M. Persinger, of counsel to the Board. -
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Mine
Workers of America, District 50, affiliated with the Congress of In-
dustrial Organizations, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Third Region ( Buffalo, New York), issued its complaint
36 N. L. R. B., No. 154.
710
THE CARBORUNDUDi COMPANY 711
dated May 27, 1941, against The Carborundum Company, Niagara
Falls, New York, herein called the respondent alleging that the re=
spondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1), (2), and (3)-
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. Copies of the complaint, 'accom-
panied by notice of hearing thereon, were duly served upon the
respondent, the Union, and Carborundum Employees' Union, herein
-called the C. E. U.
With respect to the unfair labor practices, the complaint alleged in
substance that the respondent: (1) beginning about the first day of
October 1936 and continuing to about the first day of November 1937,
fostered, sponsored, dominated, and interfered with the formation
and administration of the Employees' Representation Plan, sometimes
known as Employees' Representation Plan of the Carborundum Com-
pany of Niagara, hereinafter referred to as the Plan; (2).b eginning
on or about the first day of October 1937, and at all times thereafter,
fostered, sponsored, dominated, and interfered with the formation
and administration of the C. E. U.; (3) executed an agreement with
the C. E. U. on March 28, 1941, which agreement provided for exclu-
sive recognition by the respondent of the C. E. U. as soon as it should
be satisfactorily established that the C. E. U. represented a majority
of its employees, and recognized the C. E. U. on May 15, 1941, in
accordance with the terms of said agreement as the exclusive bargain-
ing representative of its employees, thereby encouraging membership
in the C. E. U. and discouraging membership in the Union, (4) dis-
criminatorily discharged Willie P. Hales and Stephen McMullen; and:
(5) by the foregoing acts interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
On June 5, 1941, the respondent filed its answer in which it
admitted that it had contributed certain support to the Plan, but
denied that it had engaged in the unfair labor practices alleged in the
complaint. On June 9, 1941, prior to the hearing, the Regional Di-
rector granted the motion of the C. E. U. to intervene. Thereafter,
on or about June 13, 1941, the C. E. U. filed its answer in which it
denied that the respondent dominated and interfered with the forma-
tion and administration of the C. E. U. and contributed support
thereto.
Pursuant to notice, a hearing was held at Niagara Falls,.New York,
from June 16 to 30, 1941, before George Bokat, the Trial Examiner
duly designated by the Chief Trial Examiner.' The Board, the re
spondent, and the C. E. U. were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties.
During the hearing, counsel for the Board moved that the pleadings
be conformed to the proof. Counsel for the respondent moved to
dismiss the allegations of the complaint as to Hales and McMullen.
These motions were granted without objection. At the conclusion of
the hearing, counsel for the respondent and the C. E. U. moved to
dismiss the complaint on the ground that the proof of unfair labor
practices was insufficient. Decision was reserved by the Trial Ex-
aminer on these motions, and denied in his Intermediate Report.
During the course of the hearing, the Trial Examiner made rulings
on other motions and on objections 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. After the hearing, the respondent and the C. E. U..filed
briefs with the Trial Examiner.
On September 8, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all the parties. He
found that the respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the meaning of Section
8 (1) and (2) and Section 2 (6) and (7) of the Act, and recommended
that the respondent cease and desist from such unfair labor practices
and take certain affirmative action in order to effectuate the policies of
the Act.
Thereafter, the respondent and the C. E. U. duly filed exceptions
to the Intermediate Report.' Briefs were also filed with the Board
by the respondent and the C. E. U. Pursuant to notice, a hearing for
the purpose of oral argument was held on October 21, 1941, before
the Board, at Washington, D. C. The respondent, the Union, and the
C. E. U. were represented-by counsel and participated in the hearing.
The Board has considered the exceptions and, briefs filed by the re-
spondent and the C. E. U. and, to the extent that the exceptions are
inconsistent with the findings of fact, conclusions of law, and order
set forth below, finds them to be without merit.
I During the hearing, the Trial Examiner granted a motion by counsel for the C. E. U.
to permit the intervention of a committee of three employees representing 1.658 employees
of the respondent for the "purpose of opposing the making of any order preventing the
Carborundum Employees Union from acting as the exclusive bargaining agent for me, or
any order which will set aside or deprive me of the benefit of the written contract now in
force between the Carborundum Company and that Union dated March 28, 1941." On
October 20 , 1941 , the Board received a letter from this committee stating, in part, "This
committee of three . .. now wishes to inform you that they are willing to accept the.
recommendations of the Trial Examiner as being final . We further wish to inform the
members of the National Labor Relations Board that Mr. Carrie , the attorney for the
C. E. U., nor anyone else is authorized to speak on behalf of this committee. .. .
THE CARBORUNDUM COMPANY 713
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Delaware corporation with its plant and princi-
pal place of business in Niagara Falls, New York, is engaged in the
manufacture, sale, and distribution of abrasive and refractory ma-
terials. During the period from May 1, 1940, to April 30, 1941, -raw
materials exceeding $500,000 in value were delivered to the respond-
cut's Niagara Falls plant from points outside the State of New York.
During the same period the respondent manufactured at its Niagara
Falls plant and shipped to points outside the State of New York
finished products exceeding $500,000 in value.
At the time of the hearing it employed approximately 3,300 per-
sons. The respondent concedes that it is engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Mine Workers of America, District 50, is a labor organi-
zation affiliated with the Congress of Industrial Organizations, ad-
mitting to membership employees of the respondent.
Employees' Representation Plan, also known as Employees' Repre-
sentation Plan of the Carborundum Company of Niagara, was an
unaffiliated labor organization participated in by employees of the
respondent.
The Carborunduin Employee's Union of Niagara Falls, New York,
is an unaffiliated labor organization, admitting to membership only
employees of the respondent.
III. THE UNFAIR LABOR PRACTICES 2
A. Domination of and inter f erenee with the formation and adminis-
tration of the Plan and contribution of support to it
For approximately 20 years prior to June 1936, the employees of
the respondent were unorganized. In that month, the Union began
an organizational campaign. The record does not disclose the
intensity of this campaign but it met with little success. In Novem-
ber 1936, William Ruffner, who was then employed by the respondent
in the maintenance department in a non-supervisory capacity, ob-
tained a copy of the Employee Representation Plan then in effect at
2 The material facts relating to the issues herein are substantially not in dispute. For
this reason we find, as did the Trial Examiner , that it is unnecessary to resolve minor
conflicts in testimony , the resolution of which would not affect our ultimate findings.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a neighboring plant of the R. & H. Chemical Company. According
to Ruffner, there existed a need. for some method of presenting
grievances to the management.3 Ruffner suggested to some of his
fellow workers that a similar plan be put into effect at the
respondent's plant and received their approval. He prepared a peti-
tion to be presented to the respondent requesting the installation of
a plan similar to the one at the R. & H. Chemical Company.4 After
the petition had been signed by about 100 employees, Ruffner left
it on his foreman's desk. The latter gave it to Henry P. Kirchner,
the respondent's works manager, who met with Ruffner and an in-
formal committee of employees. Ruffner asked Kirchner's approval
for a plan of employee representation; and the latter asked for time
to think it over. Heartened by Kirchnerr's lack of hostility to his
suggestion, Ruffner, with the assistance of other employees, succeeded
in obtaining the signatures of a majority of the employees to similar
petitions.6 Upon meeting again with Kirchner, Ruffner reported
that a majority of the employees desired an employee representation
plan. Kirchner gave his approval and the Plan was put into effect
about December 2, 1936.6
. The Plan provided for a "Works Council," consisting of em-
ployee representatives to be elected by the employees of each of 12
divisions of the plant, to administer the affairs of the Plan. The
Plan further provided that only employees with 2 years' continuous
service with the respondent were eligible to serve as employee repre-
sentatives, and that an employee representative who "leaves the
service of the Company, . . . shall immediately and automatically
cease to hold office." Provision was also made for "Works Council
Consultants" and "Joint Investigation Committees." The consult-
ants were to be appointed by the respondent to attend Works Council
meetings at the request of the Works Council, "for the purposes of
furnishing information and discussing matters of mutual, employe-
Company interest.," The Joint Investigation Committees were to
consist of employee and management representatives, and were to
handle "all matters of mutual employe-Company interests." Con-
cerning grievances, the Plan provided that if the Works Council and
8 Whether Ruffner awakened to this need because of the organizational campaign of the
Union does not appear from the record. However, Harold T. Mangold, an employee who
assisted in the organization of the Plan, testified, "We received the impression that the
works Council was started to prevent the CIO obtaining a foothold in the Carborundum."
He also stated that a CIO organizer had solicited his membership on four occasions during
the period the Plan was being organized.
4 According to Ruffner the petition read : "We, the undersigned would like to have such
a, p!an of employee representation in effect at the Carborundum that is now in effect at
the R & H."
6 From Ruffner 's testimony it is apparent and we find that this solicitation took place
upon company time and property.
It is evident from a copy of the Plan in evidence , that the respondent caused copies
of the Plan to be duplicated on its * "ditto" machine.
..THE 'CARBORUNDUM\ COMPANY 715
the "Works Manager" 7 could not reach an agreement, then, upon
their mutual consent, the grievance could be submitted to a board of
three arbitrators. The Works Council could amend any feature of
the Plan that dealt with its internal affairs. . However, the Works
Manager's consent was necessary in order to amend those portions
of the Plan dealing with' "Joint Employer-Employe Relations," and
if he objected to an amendment proposed by the Works Council, the
question of amendment could then, upon their mutual agreement to
do so, be submitted to a board of arbitrators. No dues, membership
requirements, or general membership meetings were provided for by
the plan.
On December 15, 1936, the employees elected a Works Council
consisting of 12 employee representatives. The Works Council, in
turn, elected one of its members, Charles Hessinger, as chairman,
and elected Ruffner as its secretary.8 The Works Council continued
to function under the Plan until June 28, 1937, when the provisions
of the Plan were tentatively revised. The respondent admitted that
during the life of the Works Council, elections of representatives and
meetings of the Council were held on company time and property;
that ballots were prepared for the December 1936 election at its
expense; that it furnished stationery, printing, and stenographic
.services which were used by the Plan on company time and property;
.and that it permitted the use of its bulletin boards by the Plan.a
Several days prior to June 25, 1937, Walter E. Mack, the respond-
ent's director of personnel and superintendent of service, informed
Hessinger that the respondent, beginning on July 1, 1937, could no
longer permit the Works Council to meet on company time or prop-
erty and that the Plan had to finance itself. The respondent posted
no notice on its bulletin boards nor did it in any other manner make
known to the employees that it was disestablishing the Plan and
completely severing relation with it.
. On June 25, 1937, the Works Council held a special meeting outside
the respondent's premises. The minutes of this meeting contain the
following :
Although the term "works Manager" is not defined , it obviously refers to Kirchner.
Ruffner resigned as secretary of the works Council on April 5, 1937, when he was made
an assistant foreman. On April 27; 1937, Peter de Leeuw, employed as a chemist in the
research laboratory in a non -supervisory capacity, was elected as secretary.
.9 In the respondent 's plant were various social , athletic, and musical organizations of the
employees which received similar privileges . The respondent urges that because the Plan
was merely accorded the same privileges that other essentially " social" organizations in
the plant enjoyed, the.employces could not have reasonably inferred that. the respondent
"favored" the flan. The argument that the Plan was on equal footing with other organiza-
tions which received support-from the respondent is hardly conclusive in view of the fact
that the Plan purported to be a labor organization within the meaning of the Act, and
-therefore, its receipt of any financial support was in direct contravention of the language
of Section 8 (2).
716 DECISIONS OF ]NATIONAL- LABOR RELATIONS BOARD
The meeting was called to order by the chairman who intro-
duced Mr. Wachob who is chairman of the Employees' Repre-
-- sentation Plan Of the R & H Chemicals-Department.
Mr. Wachob gave a history of the development of various
representation plans and brought out the different points of
importance, especially those which had been brought out in the
operation of the plan in force at their plant.
Mr. Hessinger stated that a new state law which would take
effect July 1st, required changes in the present organization.
The council then evolved a new constitution which was unani-
mously adopted to take effect as of June 28, 1937, cancelling the
old constitution entirely.
The chairman thanked Mr. Wachob for his advice and coopera-
tion and the meeting was adjourned at 1: 30 A. M. June 26, 1937.
The new constitution was merely a revision of the existing Plan.
As revised, the Plan was called the "Employees' Representation Plan
of the Carborundum Company of Niagara," and was administered
by a Plant Council instead of by the previous Works Council.' The
constitution eliminated any reference to "Joint Investigation Com-
mittees" and "Works Council Consultants" and any control by the
respondent over any amendments, alterations, or repeal of any pro-
visions of the Plan, and provided for members and an initiation fee
of 25 cents "to cover costs of printing and supplies." The revised
constitution was similar to the constitution of the old Plan, in that
it provided neither for dues nor for meetings of the membership.
Subsequently, the Plan, with Robert L. Rice as its attorney, com-
menced, but did not complete, a project "for a new constitution."
Although" no hew election of repre'sehtatives ivas held, and the
provisions of the revised Plan were never submitted to the employees
for their approval, the Plant Council began to function as such with
the same representatives and officers as had comprised the Works
Council."' Widespread solicitation for members took place on com-
pany time and property and about $250 were collected as initiation
fees."
10 In August 1937, the number of representatives was increased to 15. Three new repre-
sentatives were elected from departments which previously had not been represented. It is
obvious from the minutes of the Plant Council themselves that they were still being dupli-
cated by the respondent at its expense . Both Hessinger and de Leeuw testified that they
knew nothing about the duplication of the minutes.
" The following is the form of application used by the revised Plan in securing members :
EMPLOYEES ' REPRESENTATION PLAN OF THE CARBORUNDUM Co. OF NIAGARA
I, -------------------- hereby apply for membership in the EMPr .oYEEs' REPRE-
SENTATION PLAN OF THE CARBORUNDUM CO. OF NIAGARA, proposed as of June 28, 1937
and do hereby authorize the representatives who were elected in December, 1936 under
the former Representation Plan to act as my sole bargaining agent in all matters
TAE-CARBORUNDUM COMPANY 717
The Plant Council held its last monthly meeting on September 2,
a.nd continued to meet with the respondent during October. The
Plan signed up a member as late as October 28, 1940. Although it
did not function thereafter, it has not formally dissolved. De Leeuw,
secretary of the Works Council and Plant Council, in explaining
why he undertook to form the C. E. U.,. discussed below, stated
that he "felt that the Plant Council as changed was illegal and would
not stand the test of the Wagner Law." 12
From the foregoing facts it is clear, and, we find, that the respond-
ent aided in the formation of the Plan by approving the first petition
which asked that it be placed into effect, by duplicating copies of
the provisions of the Plan, by printing the ballots for its election,
and by permitting the election to be held on company time and
property. Thereafter, the respondent assisted the Plan and con-
triblitecl support to it by permitting it to meet on company time and
property with no loss of wages to the participants, and by providing
it with stationery, printing, and stenographic services. Moreover,
the Plan provided for the respondent's participation in its affairs.
When the Plan was tentatively revised, eliminating the respondent's
participation therein, the respondent continued to give it the same
assistance as theretofore, except that meetings of the Plant Council
did not take place on company time and property and the expense
of printing the applications for membership to the revised Plan
was borne by the latter. Moreover, no new elections took place, the
same officers and representatives of the ' Works Council continued
to act as the representatives and officers of the Plant Council, and
the respondent ' at no time informed its employees that it was com-
pletely disestablishing the Plan as a representative of its employees.
We find that the respondent dominated and interfered with the
formation and administration of the Plan, and contributed financial
and other support thereto, and that the respondent thereby inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
pertaining to rates of pay, wages, hours of employment and other matters of mutual
interest to employer and employees.
This authorization supersedes any similar authorization previously given and shall
remain in effect until specifically revoked.
I agree to pay the sum of twenty-five ($.25 cents as an initiation fee to defray
expenses of printing and suppliee,
'Although de Leeuw asserted that he was opposed to the Plan because of its un'.awful
character, he continued to act as secretary for the Plant Council, and to write letters
to the management on behalf of the Plan, during the time that he was organ:z'ng the
C. E. U. The record shows that de Leeuw's position in the plant, as well as his economic
interests, were far removed from those of the ordinary worker. On cross-examination
he testified that he worked on a monthly salary ; that he was a trained chemist and a
graduate of Pratt Institute in Brooklyn, New York; and that he had developed formulas
and inventions which , had:. beeri.psatented by him and assigned to the respondent.'
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Formation of the C.. F. U.
Believing that the "Plant Council was illegal," de Leeuw under-
took to form another unaffiliated - organization. Accordingly, he
retained Rice, to draft a constitution for such an organization.'-
Pursuant to de Leeuw's request, Rice prepared a constitution for it
new organization, which subsequently assumed the name of the
C. E. U. Appended to the constitution was the following :
By signing my name below, I hereby signify my intention to
become a member of the Carborundum Employees Union of
Niagara Falls, New York, and my willingness .to abide by its
Constitution hereto attached, including its provisions concerning
collective bargaining with my employer, the. Carborundum
Company.
Until the members of the Collective Bargaining Committee have
been duly elected and certified as provided in the annexed Con-
stitution, I hereby designate as my sole representatives for the
purpose of bargaining collectively on my behalf with the Car-
borundum Company concerning wages, hours, working condi-
tions and any and all matters in any way touching my employ-
ment by and relations with The Carborundum Company, a com-
mittee consisting of the following :
[Here appear the names of 16 employees]
I further designate as the temporary nomination and election
committee, as provided for in Article IV, Section 6, the same
persons whom I have designated above as members of the Col-
lective Bargaining Committee.
Dated: Niagara Falls, New York, ____________________, 1937.
[This is followed by space provided for the signatures of the
employees]
The 16 individuals named, and who constituted the Temporary
Collective Bargaining Committee provided for in this document,
were. the same individuals who were' the representatives and officers
of the Plant Council. When questioned at the hearing as to why
he had selected these individuals, de Leeuw replied, "They were
handling certain matters which had been taken up with the manage-
ment and they had experience to some extent S'r'i 'collective bargaining,
and also as a matter of courtesy. I didn't want to antagonize them."
De Leeuw had about 14 copies of the constitution and attached` au-
thorizations typed, and distributed them to various employees in'the
plant for the purpose of obtaining the signatures of the employees!
13 Rice, it will be recalled, bad already been engaged to prepare a, new constitution for
the Plan.
THE CARBORUNDUM COMPANY 719
Solicitation for signatures' to the authorizations described above be-
gan about September 28; 1937, and took place on company time and
property.
De Leeuw, who acted as temporary financial secretary of the
C. E. U. until December 29, 1937, testified that no money collected
by the Plant Council was turned over to the C. E. U. It appears
from the testimony of Louis T. Martin, who was the treasurer of the
Plant Council and who had in his possession about $250 representing
initiation fees paid by the employees, and from the records of the
C. E. U., and we find, that no lump sum transfer of money was made
from the Plan to the C. E. U. De Leeuw further testified that when
some of the employees, who had been representatives of the Plant
Council and had collected initiation fees in its behalf, offered him
this money for the C. E. U. he refused to accept it and told them :
. . . if that were received by the CEU, I said, it would make
the new organization illegal. I remember that distinctly because
that was the main point, that there should be a distinct division
between the Plant Council and the C. E. U. That is why I dis-
agreed with the changes they tried to make with the Works
Council.
However, Angelo Taibi testified that lie solicited monies for both the
Plant Council and the C. E. U. during working hours, and that
when he solicited signatures for the authorizations described above,
he did not request 25 cents for the C. E. U. from those employees
from whom he had collected 25 cents as initiation fees for the Plant
Council. He further testified that during working hours he dis-
tributed membership cards of the C. E. U. to those employees who
had signed the authorizations signifying their intention to become
members of the C. E. U., although they had paid initiation fees
only to the -Plant Council and had paid no dues to the C. E. U. The
testimony of Taibi was accepted by the Trial Examiner. We also
credit the testimony of Taibi, and find that at least some of the
employees who joined the C. E. U. received credit .for the initiation
fees which they had paid to the Plan. Whether other solicitors for
the C. E. U. participated in the.same practice does not appear from
the record. De Leeuw admitted that out of the funds of the C. E. U.
he paid $7.70 as rental for a safety deposit box which had been used
only by the Plan.
The Temporary Collective Bargaining Committee continued nego-
tiations with the respondent which had been begun by the Plan.
Thus, in October 1937, the Plant Council had been negotiating with
the respondent for longer vacation periods for the employees. On
November 3, 1937, Kirchner wrote to the Temporary Collective Bar-
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining Committee that the request for "increased time allowances"
was temporarily approved .14
The constitution of the C. E. U: provides for 37 officers, repre-
sentatives, and alternates. Ballots bearing the names of nominees
for these offices were printed by the C. E. U. and were distributed
to the employees over a period of 3 days from November 2 to 4,
1937 Y5 Both Peter Wasenko and Harald Mangold, employees, testi-
fied that they distributed some of these ballots during working hours,
and we so find.16
The first annual meeting of the C. E. U. took place on November 4,
1937. Hessinger, as chairman of the Temporary Collective Bargain-
ing Committee, presided. Among other matters discussed was the
constitution which de Leeuw read and explained. Hessinger stated
that "the membership list included approximately' 2100 names."
Wachob, chairman of the Employees' Representation Plan of the R.
& H. Chemicals Department, who had advised the Works Council at
the time of its revision into the Plant Council, was present at the
meeting as a guest. Wachob spoke, advising those present against
strikers or "any other radical measures," and stating, in substance,
that there were many benefits to be derived through their united ef-
forts such as the Cooperative Buying Association and Hospitaliza-
tion, which benefits had already been secured by the old Works
Council His speech was "enthusiastically received." Upon the ap=
pointment of a committee by Hessinger to count. the ballots of the
recent election, the meeting was adjourned. Nine of the 16 officers
and representatives of the Plant Counci4 were elected to office in the
C. E. U., 4 of them being elected respectively president, vice presi-
dent, recording secretary, and financial secretary. De Leeuw was
elected recording secretary.
On November 18, 1937, the C. E. U. wrote to the respondent setting
forth the names of its elected officers, executive committee men, and
their alternates. This letter requested the respondent merely "to
recognize the men elected on November 4, 1937, as the representatives
of the members of- the Union in their dealings with the Company."
Despite the C. E. U.'s claim that it had a majority of the employees,
and a verification of that claim by a third party in December 1937,
"This letter stated in part :
Your Committee and the Committee of the Management have had several discussions
relating to vacation plans for 1938.
* e *
Subject to reasonable conditions in 1938, it is my opinion that your Committee can
assume final approval of these changes in January.
1c As noted above the 16 members of the Plant Council constituted the temporary. nomina-
tion and election committee.
16 Wasenko further testified and we find that he placed about 40 or 50 ballots he was
unable to distribute otherwise in the time-card racks of the employees.
THE CARBORUNDUM COMPANY 721
the C. E. U. acquiesced in recognition by the respondent of the
C. E. U. as bargaining representative of its members only.17 From
the formation of the C. E. U. until January 1941, the C. E. U. was
unopposed by any other labor organization. During this period it
confined its bargaining activities to obtaining the settlement of vari-
ous grievances and securing some wage adjustments. It sought no
written contract from the, respondent, nor did it request exclusive
bargaining rights 18
Although the C. E. U. financed itself and held its meetings off the
respondent's premises, such activities as solicitation for members and
dues, distribution of ballots for its annual election, and the distribu-
tion of membership cards took place openly and extensively on com-
pany time and property,19 and some of the notices of the C. E. U.
were duplicated on the respondent's "ditto" machine-
11 In the minutes of the Executive Committee meeting of January 6 , 1938 , appears the
following
The Secretary read a letter received from the Management of the Carborundum Com=
pany in which the letter extended formal recognition of the Executive Committee of
the Union as bargaining agent for the Union members.
18 Rice testified that he had advised de Leeuw that the C . E. U. had the right to demand
sole bargaining rights from the respondent . The minutes of the C. E. U. during this period
of time reveal that it was influenced by a desire to retain . the respondent 's favor. For
example , at the November 4, 1937 , meeting, a question was raised as to how the C. E. U.
would enforce its rights if the respondent refused to grant a demand . 1-Iessinger replied
that the company officials had been in the past more than willing to meet any reasonable
requests of the employees , and that he believed that they would continue to act in 'the same
manner. The matter was then dropped. At a meeting on January 6, 1938, a letter from
the respondent , in which it expressed willingness to settle disputes by arbitration, but
disapproved of a demand that the arbitrators should not be connected with the respondent,
was -read . On a motion by Taibi, the letter was accepted , and a proposed article in the
C. E. U. bylaws concerning outside arbitrators was withdrawn. At a meeting on February
3, 1938 , there was a question from the floor as to whether the members of the executive
committee intended to negotiate a formal contract for the purpose of safeguarding union
members and legalizing the terms of the present "understanding ." President Mangold
replied that in his opinion there was no necessity of such a contract with management.
Several members discussed the point , and all eventually agreed with Mangold.
39 Carl Andersen , who had been a representative of the Plant Council , and was a member
of the C. E. U.'s Executive Committee for the years 1938 and 1939 , testified without con-
tradiction and we find , that during working hours he collected dues and distributed ballots
and membership cards . He further testified , that he requested his foreman , Arnold Webber,
to arrange the ballots and membership cards in rotation according to the places where the
employees in his department worked so that he could more easily pass them out. Webber
admitted doing this as a personal favor for Andersen . The finding made above concerning
the activity of the C. E. U. on the respondent ' s premises is further supported by the testi-
mony of witnesses Wasenko, Taibi, and Bray . Bray also testified that after he had been
elected an alternate representative in the sanitary department in 1938 , Personnel Director
Mack gave him a small office in the plant in which to keep his books and papers and to
sign up members , and that he used the office regularly for these purposes . Mack admitted
that he allowed Bray to use the office , and explained that he had done so only to prevent
Bray from engaging in union activity among the men during working hours , and that
Bray was only supposed to use the office during the noon hour. Thus it is undenied , that in
this instance at least , the respondent allowed the use of an office free of charge , for the
conduct of C. E. U, affairs.
433118-42-vol. 36-4 7
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Events prior to and including the signing of the contract on
March 28
The C. E. U. minutes disclose that by 1939 there was a marked
decline in interest in the C. E. U. On February 9, 1939, out of a
claimed membership of 2,100 only 36 attended a general membership
meeting; and on May 11, 1939, there were only 16 members present
at such a meeting. Later minutes for 1939 do not disclose the num-
ber of members attending, and the minutes for 1940 are not in evi-
dence. But Bray testified without contradition that the "CEU was
dead then and it came to life like the snap of a gun" when the Union
became active in the plant in 1941. We find, accordingly, that gen-
eral interest in the C. E. U. if not "dead", was at least dormant from
1939 until 1941.
Commencing early in January 1941, the Union began an intensive
organizational campaign. The C. E. U., spurred by the efforts of
the Union, did the same. At about this time, because its products
were vitally needed in the defense program, the respondent was hir-
ing many new employees.20 The C. E. U., to encourage the solicita-
tion of members and dues, offered and paid its solicitors 10 per cent
of all dues collected. Much of this solicitation took place openly
during working hours:
On February 6, 1941, the C. E. U. filed with the Board a petition
for investigation and certification.,' On February 18, 1941, the
Union filed a charge alleging that the C. E. U. was company-dom-
inated within the meaning of Section 8 (2) of the Act. The respond-
ent received notice of both the filing of the petition and the charge,
and the C. E. U. was notified of the filing of the charge. On March
10 the Union wrote to the respondent as follows :
We would appreciate your setting a date in the immediate
future, between yourself and a Committee of fifteen employees
of your Company, at which time we may discuss several matters
affecting our members.
On March 13 the respondent replied to the above letter as follows :
With reference to your letter dated March 10, 1941, kindly
advise the names of the employees of this Company to whom
you refer as a committee and the matters which you suggest
be discussed.
You will understand that in acknowledging this letter and
requesting this information the Company is not to be taken as
2° At the time of the hearing the respondent had in its employ about 1,200 employees over
and above its normal complement.
2 This petition was withdrawn without prejudice on June 14, 1941.
THE CARBORUN15UM COMPANY 723
recognizing that you are the organization whose name appears
at the head of your letter has authority to represent employees
of this Company.
On March 17 the Union wrote to the respondent setting forth
the names of its employees who constituted the committee. The
letter further stated :
We would like to discuss with you the establishment of
relationships between our organization and the company that
will make it possible to settle grievances .. .
On March 19 the C. E. U., pursuant to action taken by its executive
committee, wrote to the respondent demanding the 'granting of in-
creases in pay, improved terms and conditions of employment, exclu-
sive recognition, and a closed shop. The letter closed with the
following paragraph :
Unless the above demands are met by 5: 00 o'clock (P. M.)
Thursday, March 20, in writing, the Carborundum Employees'
Union will immediately call a strike.
Upon the initiation of preliminary negotiations and the respondent's
promise to continue negotiations upon Kirchner's return to the city
on March 24, the C. E. U. withheld action on its strike threat. How-
ever, the C. E. U. held a mass meeting on March 23, which was at-
tended by about 400 of its members, and at this meeting the following
motion was unanimously carried : "that in the event that the Collec-
tive Bargaining Committee fails to obtain a written agreement from
The Ca.rborundum Company with clauses therein satisfactory to said
Committee, prior to midnight of April 1, 1941, the members of this
Union' shall, at that time, strike."
Negotiations between the respondent and the C. E. U. took place
between March 24 and March 28 and resulted in the execution of a
written contract on the latter date. The respondent thereafter
posted a "Special Notice" on its bulletin board, summarizing the
terms of the contract and stating, as'provided therein, that "Effective
April 6, 1941 there will be a 10 per cent increase in all hourly rates
and in all base rates." This was followed by a statement of other
improvements in working conditions obtained by the C. E. U. which
was made applicable to all employees. The notice concluded with
the following :
The contract contains a provision as to exclusive bargaining
rights reading as follows :
The company recognizes the Union [C. E. U.] as the exclusive
collective bargaining agency for the employees of the company
who are also members of the Union with respect to rates of
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay,' wages, hours of employment and other conditions of em-
ployment; and will recognize the Union as the exclusive col-
lective bargaining agency for the employees of the company as
a whole in respect to such matters as soon as it shall be satis-
factorily established that the Union represents a majority. of
all the employees, so that the company can legally do so. This
obligation, however, shall be subject to any valid order or
determination of the National Labor Relations Board within
the scope of its authority and not reversed or set aside by any
court of competent jurisdiction.
D. Events subsequent to the March 28 contract
During the negotiations with the C. E. U., the respondent, on
March 26, had replied to the Union's letter of.March 17 in part as
follows :
Since you must realize that this Company cannot safely deal
with a claimed representative without authentic evidence of
whom he in fact represents and by what authority, I interpret
your letter as a request for an opportunity to make those persons
and that authority known to the Company. I am willing to
give you such an opportunity.
As a result of this letter, the Union met with the respondent at the
offices of the attorneys for the respondent on April 2.
Present at this conference were the committee of 15 employees,
representing various departments of the plant, and other representa-
tives of the Union. Franchot, attorney for the respondent, acted as
its spokesman. The Union stated that it represented a substantial
number of the respondent's employees and requested "members-only"
recognition, the same type of recognition that the respondent had
accorded the C. E. U. in the March 28 contract. Franchot professed
ignorance that the Union was a labor organization and requested
proof of that fact and evidence that employees of the respondent had
designated the Union as their bargaining agent. The Union presented
to Franchot a copy of its constitution, and the cards which the 15
employees present had signed designating the Union as their collec-
tive bargaining representative. The following colloquy, quoted from
a verbatim transcript of this meeting, also took place :
Mr. Dom (a union organizer) Now, knowing the contents'
of the card, Mr. Franchot, I want to ask you again : Knowing,
of course, the authorization this card gives to the Union and its
representatives, how many of these cards do we have to show you?
Mr. FRANCHOT. It still is not established that there exists a
TAE CARBORUNDUM COMPANY 725
union, nor is it established that that was signed by any employee
of ours.
Mr. DOYLE. The employee is here. If you want the Social
Security card?
Mr. FRANCHOT. If Mr. Bloom (the employee in question) is
here, we are ready.to deal with him.
Mr. BrooM. I am sent here as a representative of other
workers.
Mr. FRANCHOT. And as such representative we have not yet
established a status on the basis of which we can deal with you
as such.
Mr. DOYLE. That is what we want to establish right now. Do
you authorize the Union and its representatives to deal with
the Company?'
Mr. BLOOM. I do.
Mr. CLOTT [a representative of the Union]. Did you so estab-
•`lish that -by the signing of the cards?
Mr. BLooM. I did.
Mr. CLorr. And you reaffirm it now?
Mr. BLOOM. I do.
Mr. CLoTr, You know of many, many other employees who
have so done?,,
Mr. BLOOM. I have signed up many other employees in the
plant, and will continue to do so.
Mr. DOYLE. Does the question 'that I just asked Mr. Bloom
go for the rest-of you boys?
(Many voices responded by "Yes.")
Mr. DoYLE. Are you satisfied now that we have a Union in
the plant?
Mr. FRANCxoT. No, sir.
Mr. FRANCxoT. How many employees of other plants or other
industries does this Union that you say exists claim to contain?
Mr. EDELSBERG [attorney for the Union]. Thousands of others,
but that, of course, is not pertinent to the matter receiving rec-
ognition for our members.
Mr. FRANCHOT. Well, you ask that a Union of many thousands
of men working in various plants throughout the United States
should be recognized by this Company?
Mr. EDELSBELO. You have just seen a sample of the card which
has been traditionally used to designate representatives for col-
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lective bargaining or for grievances of a lesser nature that do not
go generally by the name of collective bargaining. Is the form
of that designation sufficient and adequate to meet the require-
ments you just set forth?
Mr. FRANCIOT. No. For this reason : It does not designate
the individual whom he authorizes to deal for him.
Mr. EDELSBERG.... We have tried to give you, in a conven-
tional way, proof of the existence of the obvious, and if that
proof is not satisfactory-you claim it is not-then we ask you
what proof have you found satisfactory in the past? We do
not care whether it is the C. E. U. or any other organization ;
the question is a general one, what kind of proof have you ever
found satisfactory to convince you that a labor organization
exists ?
Mr. FRANCHOT. I would say proof that you have formed a union
of the employees of the Carborundum Company, and at a certain
meeting there were certain actions taken, _ or at certain meetings
there were certain actions taken, which confer authority emanat-
ing from our employees to this committee, or to Mr. Doyle, if you
see fit, to deal for those employees.
Mr. FRANCHOT. We are not in a position, in view of your
charges before the Labor Board, to deal with you as a recognized
representative of any employees, unless, evidence of that fact
is brought to our attention. You are a complete stranger to this
Company, Mr. Edelsberg, complete strangets to this Company.
You are neither employees, nor do you hold any written author-
ization from any employee or group of employees.
Mr. DoYLE. We just showed you.
Mr. FRANCHOT. And we do not recognize you, strangers, com-
ing from Washington, or wherever you may come from, as our
employees, nor authorized to speak for our employees or any of
them, until you show us your authority.22
The above colloquy is typical of the hypertechnical objections made
by Franchot at this meeting.
On April 3, the day following the above conference, the Union
wrote to the respondent in part as follows :
^ Franchot refused repeated requests by the Union during this meeting for information
concerning the type of proof submitted by the C. E. U. that it was authorized to represent
employees of the respondent.
THE CARBORUNDUM COMPANY 727
District 50 is prepared further to submit to an impartial per-
son such additional proof as may be required in order to obtain
substantially similar recognition as has been granted by the
Company to the C. E. U. District 50, requests that if the fore-
going offers are rejected, the Company state the kind of proof it
required of the C. E. U. before granting them recognition so that
District 50 may offer the same kind of proof.
The respondent replied to this letter on April 10. Its reply contained
in part the following:
This is in reply to your letter of the 3rd inst.
I interpret that letter as in effect a demand that we treat
the organization which you call "District 50, UMWA-CIO" on
a parity with Carborundum Employees' Union, with whom this
Company has a contract in - which there occurs the language
which you practically quote in the second paragraph of your
letter. We can hardly do so until we know more of the organi-
zation you mention.
On the fifteen cards presented at the conference, the signatures
upon which were authenticated by the statements of the men
there present, the blank following the word Union No. was not
filled in with the name of any local union. From this and from
the complete silence of all concerned as to the existence of such
a local union I assume that there is none. This I consider un-
fortunate, since, of course, the company would prefer to deal
with a union composed exclusively of its employees rather than
a union of gas, coke and chemical workers,-with headquarters at
Washington, and with many thousands of members in many
states, as stated by Mr. Edelsberg, who can hardly know any-
thing as to our company's affairs, or the affairs of its employees,
or of the abrasive industry in which it must compete. This dif-
ficulty need not necessarily be insuperable, however, provided
that, upon being furnished with further authentic information,
we shall have been informed as to the nature of the labor organi-
zation, the legality of its existence and the setup providing for
valid action by it.
The letter concluded as follows :
... You may rest assured, however, that under any given
parity of circumstances as between the Carborundum Employees'
Union and any other proper labor organization of our employees
there shall be no discrimination, nor will there be, any action
which shall be taken by this company, any interference, restraint
or coercion of any employees in the exercise of rights guaranteed
in Section 7 of the National Labor Relations Act. [Italics ours.]
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At about this time the respondent posted a notice, dated April 10,
1941, which read in part as follows :
The Company has been advised by its attorneys that in very
numerous cases before the National Labor Relations Board every-
where throughout the country accusations have been made against
employers who have dealt with regularly constituted unions
that, in dealing with them, such employers had violated Section
'8 of the National Labor Relations Act,. subdivision 1, which,
makes it "an unfair labor practice for an employer to interfere
with, restrain or coerce employees in the exercise of the rights
guaranteed in Section 7" of that Act. Section 7 of that law
.reads: "Employees shall have the right to self-organization, to
form, join or assist labor organizations, to bargain collectively
through, representatives of their own choosing, and to engage
J n concerted activities, for*, the purpose of collective bargaining
or other mutual aid or protection."
In order to ' forestall any accusations of this kind against.
itself, the Company hereby notifies all of its employees that it
.has no wish nor purpose to interfere with, restrain or,coerce
employees in the exercise of such rights ; that any employee or
group of employees is free to join or participate informing any
labor organization and in choosing between any two or more
labor organizations; that by so doing no employee will incur
disapproval or censure from, the management, of this Company,
and that any action by any employee as a member of any labor
organization of his choice will not subject him to any discipline,
discrimination or disadvantage at the hands of the management.
The Company is supplementing the recent notice summarizing
provisions of the written contract between the Company and the
Carborundum Employees Union. This is in order to prevent
any misunderstanding among . employees or any possibility of
claim, however unfounded, that the Company can be charged with
any discrimination between duly constituted labor,, organizations
formed by its employees...
It is not the Company's desire or intention to confine any
employee who is not a member of that Union to a committee of
the Carborundum Employees Union as his assistant or inter-
mediary in dealing .with the superintendent of a department or
the Works Manager of the Company under the procedure above
set forth. Any employee not a member of that Union may, at
his election, present any `grievance with or through any repre-
sentative whom he shall see fit to choose and duly authorize to
THE CARBORUNDUM COMPANY 729
act for him whether an individual, a committee or a duly con-
stituted labor organization... .
It will be noted that the respondent at no place in this notice re-
ferred to the Union by its name, and that it was still insisting on
proof that the Union was "a duly constituted labor organization."
As late. as May 14, 1941, the respondent wrote to the Union that
there still were "many things to be explained" concerning the struc-
ture of the Union. In view of the captious objections interposed by
the respondent to granting "members.-only" recognition to the Union,
and the other circumstances disclosed, we find that the respondent
placed these obstacles in the path of the Union's obtaining the
same treatment as was accorded the C. E. U., for the purpose of
delaying such recognition until the C. E. U. obtained a majority
of the employees as members.23 This finding is corroborated by
the following facts.
On April 11 the C. -E. U. wrote to the- respondent stating that
it was ready to establish that it represented a majority of the em-
ployees and demanding that the respondent "immediately designate
an impartial party who will examine this evidence." On April 21
the respondent and the C. E. U. agreed to have George M. Herbst,
who had made the 1937 check, check the C. E. U. membership cards.
On May 7, Herbst reported to both the respondent and the C. E. U.
that the latter had 1700 members out of an eligible list of 3209
employees. On May 15 the respondent recognized the C. E. U.
as the exclusive bargaining agent for its employees.
Meanwhile, following the respondent's letter of April 10 to the
Union, the respondent and the Union exchanged several more letters.
The respondent, in this further correspondence, pursued the same
delaying tactics described above. On April 24 the Union sent to
the respondent a copy of a resolution enacted at a membership meet-
ing of Local 12058 authorizing the Union to bargain collectively
for "the employees of the Carborundum Company who have joined
Local Union #12058." On May 9 the Union met with the respond-
ent for the purpose of submitting additional data requested by the
latter. Although the respondent already knew that Herbst had
23 That the C. E. U. probably did not have a majority at the time the March 28 contract
.was signed is apparent from the testimony of John W . Ripple , financial secretary of the
C. E. U. In this connection Ripple gave the following testimony :
Q. You did not have a very strong majority, did you, when that certification [on May
7] was made?
A. We applied for that certification almost as soon as we felt 7e had a majority.
[This was on April 11, 1941.1
Q. As soon as you felt you had a bare majority ; is that right?
A. That's right.
Ripple also testified that the C . E. U. gained members between the time the contract
was signed and the time it asked for "certification."
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certified the C. E. U. as representing a majority of its employees,
it did not divulge this fact to the Union at this meeting. It was
not until May 14 that the respondent notified the Union of the
certification, writing to it as follows :
With reference to what was said by Mr. Constantino and
yourself, beginning on page 110 of the minutes of the last con-
ference, dealing with the subject of what action will be taken
by this Company in the event that the submission of union
data and company payroll data to. a. third party should develop
the fact that the membership of the union you represent includes
a substantial number of this company's employees : I think I
should again call your attention to what was stated by me and
Mr. Franchot that the Carborundum Employees' Union has
called for a recent determination by Mr. Herbst as to whether
or not it has in its membership a majority of our employees.
Mr. Herbst has reported a number of union members constitut-
ing substantially over a majority of all the employees who are
paid on an hourly or weekly basis. The other union has made
a demand, based upon this report, that this company- forthwith
recognize it as the sole and exclusive bargaining agent for all
such employees. I have referred this demand to- the company's
attorneys for their examination and advice. You will, of course,
appreciate that, if we are compelled to recognize the other
union as sole bargaining agent, that will stand in the way of
our recognition of your union as bargaining agent for any
purpose.
We see in this no reason, however, why your union and the
company should not proceed to the suggested determination
of the extent of its membership. [Italics ours.]
On May 16, the respondent wrote to the Union in part as follows :
Please be advised that we have responded to the demand of the
Carborundum Employees' Union, that we recognize it as the sole
and exclusive bargaining agent and a letter addressed to the
President of that Union, of which we enclose a copy for your
information. The necessary result of this is our inability legally
to deal with or recognize any other union representing only a
minority of our employees. [Italics- ours.]
E. Concluding findings with respect to the C. E. U. and the
respondent's treatment of the Union
The respondent, as we have found, dominated, supported, and inter-
fered with the formation and administration of the Plan. The
respondent claims that there was a complete break between the Plan.
THE'CARBORUNDUM COMPANY' 731
and the C. E. U. but we cannot agree with this contention. While
the Plan was still functioning and before the respondent disestab-
lished or in any way severed its connection therewith, deLeeuw,
secretary of the Plant Council, promoted the formation of the unaffil-
iated C. E. U. The attorney he engaged to prepare a constitution for
the C. E. U. had already been engaged to draft a new constitution
for the Plan. The entire personnel of the Plant Council was carried
over as the personnel of the Temporary Collective Bargaining Com-
mittee of the C. E. U. Members of the Plant Council also acted as
the nomination and election committee of the C. E. U. Thereafter,
9 members of the Plant Council were elected to office in the C. E. U., 4
of them being chosen for the four chief positions, namely those of
president, vice-president, recording secretary, and financial secretary.
The temporary Collective Bargaining Committee of the C. 'E. U.
carried on negotiations with the respondent which had been begun
by the Plant Council. Taibi, a solicitor for both the Plan and the
C. E. U., accepted the payment of an initiation fee to the Plan as the
payment of an initiation fee to the C. E. U. The C. E. U. paid for a
safety deposit box used by the Plan. Under the circumstances dis-
closed by this record, we find that the C. E. U. is the successor to the
Plan; that the persons identified with the Plan who formed and devel-
oped the C. E. U., in so doing, acted in behalf of. and represented the
respondent; and that the respondent-through these persons, its
sponsorship of the Plan, and its failure to disestablish the Plan prior
to the organization of the C. E. U.-unlawfully caused the initiation
and establishment of the C. E. U.24
The respondent contributed further support to the C. E. U. Thus
the C. E. U., at the time of its origin and periodically thereafter,
openly solicited for members and dues, and distributed its ballots and
membership cards, on company time and property, and had some of its
notices duplicated on the respondent's ditto machine..
In view of the foregoing, the respondent's recognition of, and con-
tract with, the C. E. U. for its members only on March 28, 1941,
constituted further unlawful support. Moreover, following its exe-
cution of the "members-only" contract with the C. E. U., the respondent
deliberately and in bad faith withheld parity of treatment of the
Union and disclosed its hostility to outside labor organizations The
contrasting treatment accorded to the C. E. U. and the Union, with
respect to the execution of a "members-only" contract, constituted in-
terference, restraint, and coercion and potent support of the C. E. U.
Under these circumstances, the subsequent granting of the exclusive
"Westinghouse Electric & Mfg. Co. v. NationaV Labor Relations Board , 112 F. ( 2d) 657
C. C. A. 2), aff'd 312 U. S . 660; Matter of New Idea Inc. and Federal Labor Union, etc.,
31 N. L. R. B., No. 34 and cases cited therein.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognition contract to the C. E. U. constituted additional support
thereto.
That the C. E. U. was influenced "by fear or favor, of or from the
management" 25 is also indicated by its failure in and after December
1937, although it claimed to represent a majority of the employees,
to seek exclusive recognition or a written contract. It was only after
the Union again started to organize that the C. ' E. U. revived and
sought to bargain with the respondent as exclusive representative of
the employees.
Although the respondent's notice of April 10, 1941; set forth in
general terms the employees' rights under the Act, that notice did not
"insure employees that complete freedom of choice guaranteed by
Section 7" since it did not renounce support of the Plan and the
C. E. U. and "completely" disestablish the C. E. U.23 Furthermore,
at the very time of, and following, the posting of the notice, the re-
spondent was discriminating, and continued to discriminate between
the C. E. U. and the Union, giving to the one, and withholding from
the other, "members-only" recognition. The respondent also contends
that it engaged in arms length bargaining with the C. E. U. The fact
that the respondent bargained with the C. E. U. and that the C. E. U.
procured benefits for its members is immaterial under the Act if the
respondent has, in fact, interfered with, dominated, or supported the
organization.27 We are convinced from the record that such inter-
ference, support, and domination'have occurred.
We find that the respondent dominated and interfered with the
formation and administration of, and contributed support to, the
C. E. U.; and that by such conduct, by its expression of hostility to
.outside unions, by its refusal to accord to the Union "members-only"
recognition although it had accorded such recognition to the C. E. U.,
and by its execution of the contracts with the C. E.,U., the respond-
ent has interfered with, restrained, and coerced employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
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 the operations of' the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
25 See National Labor Relations Board v. Brown Paper Mill Company, Inc. 108, F. (2d)
867 (C. C. A. 5) cert. denied 310 U. S. 651.
'National Labor Relations Board v . Falk Corp ., 308 U . S. 453.
r National Labor Relations Board V. Newport News Shipbuilding and Dry Dock Company,
308 U. S. 241 ; Corning Glass Works v. \'atioual Labor Relations Board, 118 F. (2d) 625,
(C. C. A. 2).
THE CARBORUNDUM COMPANY 733
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 unfair labor
practices within the meaning of Section 8 (1) and (2) of the Act,
we must order the respondent, pursuant to the mandate of Section 10
(c), to cease and desist therefrom. We also predicate our cease and
desist order upon the following findings : The respondent had dom-
inated and interfered with the administration of the Plan and the
C. E. U. for a long period of time and has engaged in other inter-
ference, restraint; and coercion. This long-continued and never-
disavowed illegal sponsorship and support not only violates Section
8 (1) and (2) of the Act, but reveals a purpose to defeat the basic
rights of self-organization and collective bargaining which the Act
was designed to protect. The exercise of those rights was greatly
impeded, if not altogether prevented, by the barrier which the Plan;
and the C. E. U. presented to bona. fide self-organization on the part
of the respondent's employees; by the same token, the Plan and the
C. E. U. necessarily interfered with the right of the employees to
bargain collectively through representatives of their own choosing.
Because of the respondent's long-continued unlawful conduct and its
underlying purpose, we are convinced that the respondent may seek
to accomplish its unlawful purpose by unfair labor practices other
than those in which it has engaged and that the danger of the com-
mission of such related unfair labor practices in the future "is to be
anticipated from the course of [the respondent's] conduct in the
past." 28 The preventive purpose of the Act will be thwarted unless
the terms of our order are coextensive with the threat. In order,.
therefore, to make effective the interdependent guarantees of Section
7, to prevent a recurrence of unfair labor practices, and thereby to
minimize industrial strife which burdens and obstructs commerce,"'
and thus to effectuate the policies of the Act, we shall order that the
respondent cease and desist from in any manner infringing the rights
guaranteed in Section 7 of the Act. We shall also order the respond-
^ National Labor Relations Board v. Express Publishing Company , 312 U . S. 426.
29 National Labor Relations Board v. Pennsylvania Greyhound Lines , Inc. et al ., 303 U. S.
261, 266 . The Report of the United States Senate Committee on Education and, Labor on
the National Labor Relations Bill stated , 77th Cong ., 1st Sess ., Sen. Rep . No. 573:
Practically 70 per cent of the employer -promoted unions have sprung up' since the
passage of Section 7 ( a) of the National Industrial Recovery Act. The testimony before-
the Committee has indicated that the active entry of some employers into a vigorous.
competitive race for the organization of workers is not conducive to peace in industry.
It is the wish of the committee to prevent in so far as possible the perpetuation of
bitterness or strife.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent to take certain affirmative action, which we find necessary to
effectuate the policies of the Act.
We have found that the respondent has dominated and interfered
with the Plan and the C. E. U. and has contributed support to them
and that the C. E. U. is the successor to the Plan. We further find
that the effects and consequences of the respondent's domination, inter-
ference with, and support of the Plan and the C. E. U., as well as the
continued recognition of the C. E. U. as the bargaining representative
of its employees, constitute a continuing obstacle to the free exercise
by its employees of their right to self-organization and to bargain
collectively through representatives of their own choosing. Accord-
ingly we will order that the respondent. withhold all recognition from
the Plan and disestablish and 'withdraw all recognition from the
C. E. U. as the representatives of any of its employees for the purpose
of dealing with it concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment.
Since the agreement between the respondent and the C. E. U. em-
bodies recognition of the C. E. U. as exclusive bargaining representa-
tive of its employees and since such contract represents the fruit of
the respondent's unfair labor practices and a device by which to
perpetuate their effects, we will order the respondent to cease giving
effect to this or any contract existing between it and the C. E. U., and
to any modifications or extensions thereof. Nothing in this Decision
and Order shall be taken, however, to require the respondent to vary
those wage, hour, and other substantive features of its relations with
the employees themselves, if any, which the respondent has estab-
lished in performance of the contract as extended, renewed, modified,
supplemented, or superseded.
Upon the foregoing findings of fact, and upon the entire record in
the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Mine Workers of America, District 50, affiliated with
the C. I. 0., is a labor organization within the meaning of Section
2 (5) of the Act.
2. Carborundum Employees' Union of Niagara Falls, New York,
is an unaffiliated labor organization within the meaning of Section 2
(5) of the Act.
3. Employees' Representation Plan, also known as Employees'
Representation Plan' of the Carborundum Company of Niagara, was
an unaffiliated labor organization within the meaning of Section 2
(5) of the Act.
4. By dominating and interfering with the formation and ad-
ministration of Employees' Representation Plan, also known as
THE CARBORUNDUM COMPANY 735
Employees ' Representation Plan of the Carborundum Company of
Niagara, and contributing support thereto, the respondent has en-
gaged in and , is engaging in unfair labor practices , within the mean-
ing of Section 8 (2) of the Act.
5. By dominating and interfering with the formation and admin-
istration of Carborundrum Employees ' Union of Niagara Falls, New
York, and contributing support thereto , the respondent has engaged
in and is engaging in unfair labor practices , within the meaning of
Section 8 ( 2) of the Act.
6. 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.
7. ' The aforesaid labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 (6) and ( 7) of the Act.
ORDER
Upon the basis of the foreging findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, The Carborundum Company, Niagara Falls, New York,
and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of Employees' Representation Plan, or of Carborundum
Employees' Union of Niagara Falls, New York, or with the forma-
tion or administration of any other labor organization of its em-
ployees, and from contributing support thereto;
(b) Recognizing Employees' Representation Plan or Carborundum
Employees' Union of Niagara Falls, New York, as a representative
of any of its employees for the purpose of dealing with the respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or any other conditions of employment;
(c) Giving effect -to its agreement with Carborundum Employees'
Union of Niagara Falls, New York, or to any extension or renewal
thereof, or to any agreement with Carborundum Employees' Union
of Niagara Falls, New York;
(d) 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 purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
. (a) Withhold all recognition from Employees' Representation
Plan, and withdraw all recognition from and completely disestablish
Carborunduni Employees' Union of Niagara Falls, New York, as
representatives of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, rates of
pay, wages, hours of employment, or other conditions of employment;
(b) Post immediately in conspicuous places throughout its plant
at Niagara Falls, New York, and maintain for a period of not less
than sixty (60) consecutive days from the date of posting, notices
to its employees stating : (1) that the respondent will not engage in
the conduct from which it is ordered to cease and desist in paragraphs
1 (a), (b), (c), and (d) hereof; and (2) that the respondent will take
the affirmative action set forth in paragraph 2 (a) hereof;
(c) Notify the Regional Director for the Third Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.