The Dow Chemical Co.

National Labor Relations Board - Board Decisions

Jun 4, 1965

152 N.L.R.B. 1150 (N.L.R.B. 1965)

1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL, if iequested by United Glass and Ceramic Workers of North
America, AFL-CIO, sign the agreement we reached with said Union to be
effective from January 2, 1964, to at least January 2, 1966, and give retro-
active effect to all the terms of said Contract, including but not limited to the
provisions relating to wages and other benefits, and make whole employees
for any losses suffered by reason of our refusal to execute said Contract. If no
such request is made, we will, upon request, bargain collectively with the Union
as the exclusive bargaining representative of the employees in the following unit:
All production and maintenance employees employed at our plant on
Stone Road in Lexington, Kentucky, excluding all office clerical employees
and all guards, professional employees, and supervisors as defined in the
Act.
BIG RUN COAL & CLAY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 2023
Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No 381-2200.
The Dow Chemical Company and Oil, Chemical and Atomic Work-
ers, AFL-CIO, and Industrial Union Department , AFL-CIO.
Case No. 13-CA-6309. June 4,1965
DECISION AND ORDER
On March 3, 1965, Trial Examiner Herbert Silberman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that those allegations of the complaint be
dismissed. Thereafter, the General Counsel and the Respondent filed
exceptions to the Trial Examiner's Decision and supporting briefs.'
'On May 12, 1965, the Board granted the General Counsel's request, predicated upon
the parties' informal resolution of that issue. for permission to withdraw those of his
exceptions which were directed to the Trial Examiner's failure to find a violation of
Section 8(a) (5) of the Act. Accordingly, in the absence of exceptions thereto, we adopt,
pro forma, the Trial Examiner's conclusion that the Respondent did not violate Sec-
tion 8(a)(5) of the Act, and therefore find it unnecessary to consider or pass upon the
reasoning and conclusions of the Trial Examiner respecting the refusal-to-bargain allega-
tions of the complaint.
152 NLRB No. 122.
THE DOW CHEMICAL COMPANY 1151
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the supporting briefs, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following addi-
tions and modifications.
We find, in agreement with the Trial Examiner, that the Respondent
violated Section 8(a) (1) of the Act by discharging Lillian Piatek on
March 9, 1964.
The Trial Examiner initially found that the Respondent's "real
reason" for discharging Piatek was its belief that she was responsible
for the March 7-8 refusals by employees to volunteer to work.
Although further finding that in refusing to volunteer for work on
March 7-8 the employees "were acting in concert to achieve an objec-
tive for their mutual benefit," the Trial Examiner concluded that the
refusal to work overtime constituted an unprotected partial strike. He
concluded, however, that the Respondent had condoned their partici-
pation in the unprotected strike, and he accordingly found that the
Respondent violated Section 8(a) (1) by discharging Piatek.
We agree with the Trial Examiner's findings on the condonation
question, assuming the employees' activity was unprotected. We dis-
agree however, with his conclusion that such activity was unprotected.
We find initially that the Respondent discharged Piatek on March 9
in substantial part because of her activity connected with the refusal
of employees to volunteer for work March 7-8. Thus, as noted, Piatek
did not volunteer for work on March 7-8; she criticized Herisco for
having worked during that weekend; Herisco informed Curtis of this
conversation; and Curtis told Piatek that the phrase "interfering with
employees" in her termination notice referred to Piatek's having told
people not to come in to work on weekends. Further, the Respondent
has admitted that it discharged Piatek partly because she refused to
work the weekend of March 7-8 and because of her leadership in the
refusal by many employees to work that weekend.
Unlike the Trial Examiner, however, we find that the refusal by
employees to volunteer for work on March 7-8 was protected concerted
activity. As noted, the Trial Examiner found, and the Respondent
does not contend otherwise, that the refusal by employees to work on
March 7-8 was concerted activity "for the purpose of collective bar-
gaining or other mutual aid or protection" as guaranteed by Section 7
of the Act. The Trial Examiner reasoned, however, that since the
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees had intended to remain away from work not only on the
weekend of March 7-8 but also for all succeeding weekends, at least
until March 23 when the new schedule was to become effective, such
concerted refusal of employees to volunteer for overtime work consti-
tuted an unprotected attempt by employees to work "on terms pre-
scribed solely by themselves." In this connection, the Trial Examiner
relied on John S. Swift Company, Inc., 124 NLRB 394, Honolulu
Rapid Transit Company, Limited, 110 NLRB 1806, and related cases .2
However, in each of those cases the Board found that the employees'
conduct was unprotected because the employees involved refused to
perform scheduled overtime work. Thus, for example, in the Swift
case, the Board explicitly found that the Respondent employer's
"intention was to order them, under pain of discharge, to work over-
time, and the employees could not have understood it otherwise in the
context of the statement which was read at the time of their termina-
tion." The vice of such conduct, as the Board stated in Honolulu
Rapid Transit Company, Limited, was that the employees were
attempting to "establish and impose upon the employer their own
chosen conditions of employment." (110 NLRB 1806, 1810). Here,
however, Piatek's discharge was based in substantial part on her activ-
ity connected with the refusals to volunteer for work on March 7-8,
and on March 7-8 the Respondent's new work schedule was not yet in
effect and therefore weekend work was still voluntary.3 In such cir-
cumstances, since the employer had already agreed to permit employees
to decide for themselves whether they wished to work on weekends, we
cannot say that employees, by refusing to volunteer for work, lost the
protection of the Act because they sought to impose on their employer
their own conditions of employment. Nor do the facts that about
March 6 employees also discussed plans not to volunteer for work on
March 14-15, that an employee mentioned this possibility to the
Respondent, and that on March 9 the Respondent directed inspectors
to work on March 14-15, require a different conclusion. In the first
place, the record shows that employees considered refusing to volun-
teer for work on both weekends only because at the time of these dis-
cussions weekend work was still voluntary. In any event, when Piatek
was discharged on March 9, employees actually had stayed away from
work only on March 7-8. In view of the foregoing and on the basis
of the record as a whole, we find that the refusal by employees to volun-
2 See Brantly Helicopter Corporation, 135 NLRB 1412, 1416; Valley City Furniture Com-
pany, 110 NLRB 1589, 1594-1595, enfd . 230 F. 2d 947 (C.A. 6) ; N.L.R.B. v. Kohler Com-
pany, 220 F. 2d 3, 11 (C.A. 7).
3 The practice at the Respondent 's plant was for employees who wished to volunteer
for weekend work to indicate the fact to the Respondent on the Wednesday prior to the
weekend. There is no indication in the record here that any employee had already volun-
teered to work March 7 or 8.
THE DOW CHEMICAL COMPANY 1153
teer for work on March 7-8 was protected concerted activity, and that
by discharging Piatek for participating in such activity, the Respond-
ent violated 8(a)(1).
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, The Dow Chemical Company,
Chicago, Illinois, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order, as
so modified.
1. Add the following as paragraph 2(b) to the Trial Examiner's
Recommended Order, the present paragraph 2 (b) and those subsequent
thereto being consecutively relettered:
"(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of her right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
2. Add the following immediately below the signature line of the
Appendix attached to the Trial Examiner's Decision.
NOTE.-We will notify the above-named employee if presently
serving in the armed forces of the United States of her right to
full reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and amended charges filed by Oil, Chemical and Atomic Workers,
AFL-CIO ( herein called the Chemical Workers), and Industrial Union Department,
AFL-CIO, a complaint dated June 11 , 1964, was duly issued alleging that the
Respondent , The Dow Chemical Company (herein called the Company), has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1), (3 ), and (5) and Section 2(6) and (7) of the National Labor Relations
Act, as amended , herein called the Act. Respondent duly filed an answer denying
the material allegations of the complaint . A hearing in this proceeding was held
before Trial Examiner Herbert Silberman at Chicago , Illinois, on July 20 and 21,
1964. Thereafter , briefs were filed on behalf of General Counsel and Respondent.
With his brief counsel for General Counsel filed a motion to correct the transcript
of the testimony in this proceeding . Said motion is granted and it is hereby ordered
that the transcript shall be corrected.
Upon the entire record in this case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a Delaware corporation , maintains an office and place of business in
Chicago, Illinois, where it it engaged in the manufacture , sale, and distribution of
plastic containers and related products . During the past calendar year, in the course
789-730-66-vol. 152-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conduct of its business operations , Respondent manufactured , sold, and shipped
from its Chicago plant to other States of the United States products valued at in
excess of $ 100,000 and purchased goods and materials valued at in excess of $100,000
which were shipped to its Chicago plant from points outside the State of Illinois.
Respondent admits, and I find, that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Chemical Workers is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
In summary, the issues in this proceeding are the following'
1. Whether Foreman Eugene Gabryel, about March 7, 1964, threatened to dis-
charge employee Ralph Reeves if Gabryel should discover that Reeves was working
for a union.
2. Whether Respondent, on March 9, 1964, unlawfully discharged Lillian Piatek
because of her participation with other employees in a concerted refusal to work the
weekend of March 7-8 or because of her union activities. Respondent denies that
Piatek was discharged for any such reason and asserts that Piatek was discharged
for cause because she refused to work the weekend of March 14-15. Respondent
further contends that the concerted refusal of its employees to work the weekend of
March 7-8 was an unprotected activity so that even if Piatek had been discharged
for such reason the discharge did not violate the Act. General Counsel argues in
reply that, if the refusal of Piatek and others to work the weekend of March 7-8
was unprotected, Respondent condoned such misconduct and therefore its subse-
quent discharge of Piatek for such reason was nevertheless unlawful
3. Whether Respondent unlawfully refused to bargain collectively with the Chem-
ical Workers when, on and after April 6, 1964, it refused to recognize the Chemical
Workers as the representative of its employees in an appropriate collective-bargaining
unit. Respondent contends that because an election, upon a petition filed by
another labor organization, had been held by the National Labor Relations Board
among the employees in the same bargaining unit less than a year preceding the
Chemical Workers' request, the Company had the right under the Act to refuse to
recognize the Chemical Workers or any other labor organization as the represen-
tative of its employees for a period of 1 year from the date of the previous election,
and further contends that it had a good-faith doubt concerning the Chemical Work-
ers' majority, despite the fact that the Union was able to demonstrate that it had
authorization cards from a majority of the employees in the appropriate unit.
B. Sequence of events
1. Background
The genesis of this case lies in the announcement of a change in work schedules
made by the Company on March 4, 1964, which engendered dissatisfaction and
resistance to its implementation on the part of the employees. On August 7, 1963,
7 months earlier, a representation election in Case No. 13-RC-9489 was conducted
by the Board among the production and maintenance employees at the Company's
Chicago plant.' The petitioner in that proceeding and the only labor organization
participating in the election, District 50, United Mine Workers of America, lost the
election . Of approximately 69 eligible voters, 23 votes were cast for and 37 votes
were cast against the petitioner. The Regional Director of the Board issued his cer-
tification of results of election on August 15, 1963.
'The Company and the participating labor organization had entered Into a stipulation
for certification upon consent election on June 27, 1963, which was approved the next
day by the Board's Acting Regional Director and which defined the appropriate collective-
bargaining unit as "All production and maintenance employees of the Employer at its
Chicago, 111, plant, at 4630 West 53rd Street, but excluding office clerical employees,
guards, professional employees, supervisors as defined in the Act, and all temporary
employees "
THE DOW CHEMICAL COMPANY 1155
2. The announcement of the new schedule
During the times relevant hereto, the Company maintained continuous 7-day per
week operations at its Chicago plant, which is its only facility involved in this case.
Prior to March 1964 the employees' regular workweek was Monday to Friday, inclu-
sive, and weekend work was voluntary. The Company paid its employees at over-
time rates for work performed on Saturdays and Sundays. Lillian Piatek, the
alleged discriminatee herein, who was one of three inspectors on the afternoon shift
(4 p.m. to midnight), customarily worked alternate Saturdays and did not work on
Sundays. This practice was acceptable to her supervisor, Gordon R. Curtis?
On Wednesday morning, March 4, 1964 , an announcement was made to the
employees of a general wage increase and that beginning March 23 the regular
workweek would include all 7 days and employees would be assigned 6 consecutive
days of work followed by 2 days off. Under the new schedule Saturday and Sunday
work would become mandatory and employees would not necessarily be compen-
sated at premium overtime rates for such work.
3. Employees' opposition to the new schedule
The employees' reaction to the announcement was unfavorable. In discussions
among themselves there were expressions of dissatisfaction with the new schedule,
expressions of regret at having voted against union representation in the recent elec-
tion, and conjectures that it might be desirable to seek the assistance of a labor
organization. Thus, Lillian Piatek testified that in discussing the announcement with
Adella Pateriomus on Wednesday morning, March 4, she said, "And to think that
we voted a union out," and Pateriomus replied, "Well, maybe we will have to start
thinking about getting a new one in again." During the remainder of the week
similar conversations 3 took place among the employees while riding together in
their car pools, at meal periods, and during work breaks. The employees openly
expressed their resentment of the new schedule to officials of the Company. Piatek
testified that she voiced her displeasure with the new schedule to Production Super-
intendent Wayne Hunt, to Personnel Director Robert Van Ordstrand, and to Quality
Control Supervisor Gordon R Curtis. She also told Curtis on Friday, March 6,
that if the schedule is not changed "I would have to quit and probably a lot of girls
[also] ... and ... I found out from reliable sources that maybe we could have the
schedule changed." 4 Curtis testified that on March 4 he mentioned to Van Ordstrand
and to Plant Manager William Barkley that there was one employee, referring to
Piatek, who was quite upset about the schedule and they suggested that he should
let things ride and possibly she would settle down within a few days.
The most outspoken expressions of dissatisfaction with the new schedule voiced
by employees to management occurred at a meeting of the afternoon shift which was
held on Friday, March 6. Among the management officials present were Plant
Manager Barkley, Production Superintendent Hunt, Personnel Director Van Ord-
strand and Foreman Eugene Gabryel. Barkley explained the operation of the new
schedule to the employees. Then, according to Adella Pateriomus, "I had said that
if we had a union, this would have never happened. And Mr. Barkley said that a
union wouldn't have done no good. And I also had said that if a union would try
to get in now , I am sure they would get in ." Pateriomus also complained that the
schedule would disrupt her family life. In response to a question, Barkley said that
anyone who consistently was absent from work on weekends would be discharged.
Pateriomus remarked to the meeting before its close that she did not plan to work
2 Curtis testified that the few times he had asked Piatek to work on Sundays she had
declined for the stated reason that she wanted to be home with her husband and family
on Sundays According to Piatek, Curtis had advised her that as long as the three in-
spectors on her shift had agreed upon a weekend schedule which did not require Piatek
to work on Sundays, "he would let it be that way "
'Diane Cole testified that employees "were talking about getting a union in to see if
they could do something about the schedule " And Adella Pateriomus testified, "[W]e
all agreed that we wanted a union in to try to help us out."
' Curtis testified that Piatek told him that she might have to quit if the schedule was
not changed, but he neither affirmed nor denied that she also told him that she had
learned "from reliable sources that maybe we could have the schedule changed."
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the two weekends preceding the effective day of the new schedule in order to spend'
the time with her family . Lillian Piatek also expressed her dissatisfaction with the
schedule at the meeting.5
4. Employees refuse to work the weekend of March 7-8
Following the aforesaid meeting there were further discussions among the employ-
ees about remaining away from work the weekends preceding March 23. As a
result, so few employees reported for work on Saturday and Sunday , March 7 and 8,
that the Company 's normal weekend production was impaired . Of the three inspec-
tors on the afternoon shift neither Piatek nor Diane Cole worked on March 7 or 8,
but Theresa Herisco worked on Sunday , March 8. Monday morning Piatek told
Herisco that "the girls were displeased with her that she changed her mind and
came to work Sunday." Piatek explained that "the older girls didn 't want the new
schedule. And as you see , when they say there is a will there is a way. We were
trying to find a way to show the Company that we were dissatisfied with the new
schedule. And so, we decided not to work the week-ends." 6
5. Union assistance is sought
On March 5, the day after the new schedule was announced , Lillian Piatek tele-
phoned Clarence Washington , an International representative of the Chemical Work-
ers, and discussed the matter with him. Washington met with Piatek at her home
that afternoon at which time she signed an authorization card for the Chemical
Workers and gave Washington the names and addresses of three other employees
whom she thought might be interested in union representation . Piatek testified that
she told four women in her car pool that she had been in communication with the
Chemical Workers and, the same day while in the plant , she told three other women
that she had called the Chemical Workers and asked those women if they would like
to join the Union and they said they would . The foregoing was the total extent of
Piatek's union activities?
6 Lillian Platek testified that , at the meeting , in addition to complaining about the
schedule , she said, "[Ilf we had a union to fight for us that maybe we could stay on the
schedule we were." However, Adella and Maureen Paterlomus , who were called as
witnesses by General Counsel, testified that Lillian made no comment about a union at
the meeting. Because of these contradictions and because Piatek impressed me as having
exaggerated the events she was describing in her testimony , I find that she did not make
the quoted remark.
6 Curtis testified that he believed Platek was responsible for the excessive absences on
the weekend of March 7-8. Piatek denied that she had induced any employees to remain
away from work , although she admitted that she had engaged in discussions with other
employees about refusing to work weekends The record establishes that Platek and
many of the so-called older female employees , giving effect to their common purpose of
exerting pressure on the Company by refusing weekend work , did not report for work
on March 7 or 8. However , there is insufficient evidence upon which to base a finding
that Platek was a leader of the episode.
7 Piatek did not testify to any conversation with Curtis about unions Similarly,
Curtis testified that he had not discussed unions or union activity with her However,
on cross - examination , Curtis testified that he had made a statement to counsel for Gen-
eral Counsel " that Lillian Platek had stated to me ( probably on March 6 ) that this
plant would have a union " Upon further examination Curtis testified , "I don't remem-
ber exactly if these were the exact words she used or not or even if the union was men-
tioned in there , whether she was going to organize the plant or whether she was going
to have a union in there " Curtis also testified that he did not remember the alleged
remark by Piatek but only remembered that he had made a statement concerning the
remark. General Counsel , who attacks the credibility of Curtis, does not contend that
Piatek made the remark referred to by Curtis in his statement , but that Curtis mis-
understood Platek ' s comment that she had "found out from reliable sources that maybe
we could have the schedule changed" to have been to the effect that the plant would be-
come unionized . Assuming Curtis believed Platek was predicting the eventual unioniza-
tion of the plant and that she might assist such effort , I do infer therefrom that Curtis
had learned of Piatek ' s activities on behalf of the Chemical Workers particularly as
March 5 was the only time Piatek discussed the Chemical Workers in the plant and
Curtis was absent on that day.
I agree with General Counsel that Curtis was an unreliable witness The many in-
stances of self-contradiction in his testimony , his evasiveness when asked questions on
cross-examination , and his deportment on the witness stand gave me an unfavorable
impression regarding his veracity Despite my reservations concerning the truthfulness
THE DOW CHEMICAL COMPANY 1157
On March 5 or 6 Washington spoke with Ralph Reeves , Joe Canizzo , and Marilyn
'Grbinicek in their homes , these being the employees referred to him by Piatek. It
was not until March 14 that the Chemical Workers held its first meeting of employ-
ees of the Company, as of which date the Union had received authorization cards
from only four employees . There is no evidence in the record of any union activity
,on the part of the Company 's employees prior to March 14 except as is described
above and except with respect to the incident involving Ralph Reeves summarized
below.
6. The alleged unlawful threat of discharge
Reeves testified that on March 6 he met with Washington who suggested that he
should circulate a petition to determine the extent of union interest among the
employees . Reeves prepared a petition which stated , "We, the undersigned are not
in accord with the schedule and would like a discussion ." No reference to any
union was included in the instrument. Reeves, who worked on the afternoon shift
4 p.m. to midnight , testified that he brought the petition to the plant and at 11:55
p.m., after he had been released from work , he went to the lunchroom where he
solicited signatures from girls who worked on the next shift . The foreman of that
shift came into the lunchroom and after observing what was going on said that it
was perfectly legal. The girls, therefore , continued to sign the petition . About 7
p.m. on the next day Reeves ' foreman, Eugene Gabryel, spoke with Reeves about the
matter. According to Reeves , Gabryel said, " `I understand you are passing out
pamphlets and petition cards . . . .' And I said, 'no.' He said, `Well , if I find out
you are working for a union , I am going to fire your " Reeves also testified
that Gabryel said that the midnight foreman had told Gabryel that Reeves was
working for a union.
Gabryel testified that about 11 p in on the night in question Joe Clemmons, the
foreman of the midnight shift, informed him about Reeves' activity . About 11:30
p.m., Gabryel went to Reeves and told him , "If you are passing out any pamphlets
or cards ... don ' t pass it out on company time ." Although both Reeves and Gabryel
testified only briefly at the hearing and my opportunity to form an opinion concern-
ing their respective credibility was limited , Gabryel, nevertheless , impressed me as
being more forthright than Reeves. Accordingly , I credit Gabryel 's version of his
conversation with Reeves and find that General Counsel has not proved that about
March 7, 1964 , Gabryel threatened Reeves with discharge
7. The discharge of Lillian Piatek
Because for the weekend of March 7-8 there had been a breakdown in the prac-
tice whereby the employee complement for Saturday and Sunday work was filled by
volunteers , the decision was reached that specific work assignments would be made
for the next weekend. Accordingly , with respect to the three inspectors assigned to
the afternoon shift, on March 9 , Curtis requested Diane Cole to work on Saturday,
March 14, and Theresa Herisco and Lillian Piatek to work on Sunday , March 15.8
However, Piatek informed Curtis that she would not work that Sunday. After
reporting the matter to Barkley and Van Ordstrand , Curtis prepared a termination
slip which he gave to Piatek . Prior to her termination , Curtis had informed Piatek
that the employees would be required to work the weekend of March 14-15, but
had not specifically advised Piatek that she would be discharged if she refused . Piatek
testified that she understood weekend work was still voluntary and that she would
have changed her mind about refusing to work on Sunday , March 15, if she had
known that she would be discharged for such reason . Her explanation is unconvinc-
ing. It had not been the practice for the Company to make weekend assignments
on Monday mornings as was done on March 9 . Piatek knew that most of the older
employees had not reported for work the previous weekend It should have
occurred to her (even had she not received specific advice to such effect) that in
of Curtis' testimony , I have not automatically accepted as credible conflicting testimony
of Lillian Piatek She also impressed me as being an unreliable witness. I am of the
opinion that she exaggerated her testimony in order to develop a story more favorable
to her cause than would be gained from a careful recital of the facts Accordingly, in
reaching my Decision in this case , I have relied only upon those parts of the testimony
of Curtis and Piatek ( whether or not specifically contradicted ) as I have found, when
related to all other evidence in the record , was credible
8 Contrary to the testimony of Piatek and Cole , Curtis testified that he assigned Iierisco
to work on Saturday , March 14, and not on Sunday , March 15 , and that the only inspector
he asked to work on Sunday, March 15 , was Piatek I do not credit Curtis in this
respect.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these circumstances the Company was no longer following its previous practice with
regard to recruiting volunteers for weekend work. Furthermore , when Piatek was
advised that she was being terminated for refusing to work on Sunday, March 15, she
did not then offer to change her position and work that weekend
The termination slip which Curtis gave Piatek assigns as reasons for her termina-
tion, "Violations of Group II, 12 and 14 (Interfering with employees ) Failure to
work scheduled overtime as requested ." 9 Curtis, who testified that he alone was
responsible for the decision to terminate Piatek, also testified that it was Piatek's
refusal to work on Sunday , March 15, that precipitated his decision to discharge her.
However, his further testimony shows that another factor also motivated the deci-
sion . lo Curtis testified that he believed Piatek was responsible for many employees
o The termination slip was drafted by Curtis with the assistance of Personnel Direc-
tor Van Ordstrand . Group II , items 12 and 14 , refer to sections of the Company's em-
ployees ' manual which lists various rules for the violation of which employees would be
subject to disciplinary action. These rules provide that for a first offense the penalty
may vary from reprimand up to and including discharge , depending upon the seriousness
of the offense . Items 12 and 14 thereunder are as follows:
12 Threatening , intimidating , coercing , or interfering with employees or supervision.
14. The uttering or publishing of false , vicious or malicious statements concern-
ing any employees of the Company.
There was considerable testimony adduced as to what offenses on the part of Piatek were
being referred to in the termination slip Such testimony , however , is of little weight in
this case because the significant question is not what reasons Respondent gave Piatek
for her termination , but what in fact were the reasons which motivated Respondent to
discharge her.
10 General Counsel argues that one such other factor was Piatek 's activities on behalf
of the Chemical Workers , while Respondent contends that her union affiliation and
activities did not influence its decision to discharge Piatek and , moreover , that it had
no knowledge of such affiliation or activities Although Platek ' s activity on behalf of
the Chemical Workers was limited , General Counsel in his brief points to three facts as
establishing that Respondent believed Piatek was active in the Chemical Workers and
that she was discharged for such reason . One is that at the March 6 meeting of em-
ployees Platek said , "[ I]f we had a union to fight for us maybe we could stay on the
schedule we were" However , for the reasons discussed in footnote 5, supra, I find that
Piatek did not make such statement The second fact to which General Counsel refers is
a telephone conversation between Piatek and Curtis on March 10 , the day after she was
discharged , during which , according to Piatek , after she complained of a "raw deal,"
Curtis responded , " Well, you called the Union " Curtis denied having made such remark.
I credit Curtis ' denial According to both Piatek and Curtis, Piatek telephoned in order
to question Curtis about the termination slip which was given to her . Curtis' testimony
that their conversation was limited to the one subject and that he did not volunteer the
remark attributed to him by Piatek is more plausible than Piatek 's version of their con-
versation Finally , General Counsel points to testimony by Curtis that Piatek may have
said to him that she "was going to organize the plant . . . she was going to have a
union in there" as supporting an inference that Curtis believed Piatek was active on
on behalf of a union. I do not agree that such inference should be made . See footnote 7,
supra. At most , the quoted excerpt from Curtis' testimony can be construed to mean
that Curtis believed not that Piatek was active on behalf of a union , but that someday
in the future she might become so. I also disagree with General Counsel that there is
sufficient other circumstantial evidence in this record from which to infer that the
Company was aware of Piatek ' s activities on behalf of the Chemical Workers In addi-
tion to the paucity of evidence tending to indicate that Respondent had knowledge of
Platek's union activities , also militating against the position that Piatek was discharged
because of her union activities is the absence of evidence reflecting any disposition on
the part of Respondent to discriminate against employees for such reason and some
evidence that the Company was tolerant of union sympathizers. For instance , despite
Adella Pateriomus' forceful remarks at the March 6 meeting , the record shows not only
that Pateriomus was not the object of reprisals for her sentiments and statements but
that subsequently she received a promotion in her job ( The evidence adduced on be-
half of General Counsel that Foremen Gabryel and Mueller , during May 1964 , in friendly
conversations with employees expressed their personal opinions that a union would do the
employees no good does not establish that Respondent was likely to discriminate against
union adherents .) Accordingly, I find that the General Counsel has not proved by a
preponderance of the evidence that Piatek 's union affiliation or activities contributed to
the Company 's decision to terminate her employment.
THE DOW CHEMICAL COMPANY 1159
having failed to work the weekend of March 7-8 and this fact contributed to his
decision to discharge her. Curtis explained that he considered it necessary to assert
his authority because "it was either the fact I was going to run the department and
not Lillian Piatek. I was going to tell Lillian that we had to work these week-
ends ...." Thus, by Curtis' own admission, Piatek's involvement in the concerted
refusals of employees to volunteer for work on the weekend of March 7-8 was a
factor leading to her discharge and, as will be discussed below, was the dominant
factor.
8. The Company's refusal to recognize the Chemical Workers
The complaint herein also alleges that since April 6, 1964, Respondent unlawfully
has refused to bargain collectively with the Chemical Workers as the exclusive rep-
resentative of a unit of the Company's employees. The unit for which the Chemical
Workers requested recognition and which the Company agrees would be appropri-
ate for purposes of collective bargaining is the following
All production and maintenance employees employed by Respondent at its Chi-
cago, Illinois, plant at 4630 West 53d Street, exclusive of professional employees,
office clerical employees, guards, and supervisors as defined in the Act.
The parties stipulated that as of April 6, 1964, a majority of the employees in the
unit had signed authorization cards designating the Chemical Workers as their
collective-bargaining representative and that such majority continued through at
least April 28, 1964. The number of employees in the unit during the month of
April varied between 116 and 133.
On April 6, 1964, the Chemical Workers wrote to the Company requesting recog-
nition and advising that it was prepared to substantiate its claim that it represents a
majority of the Company's employees "by having the Illinois Department of Labor
conduct a card check to certify our majority status or conduct an election to con-
clusively ascertain the validity of our claim." On April 16, 1964, the Chemical
Workers again wrote to the Company demanding recognition and, in order to dem-
onstrate that it represented a substantial majority of the Company's employees,
enclosed with its letter a document, dated March 27, 1964, signed by 81 of the
Company's employees which reads as follows:
We, the undersigned, comprise the O.C.A.W. Organizing Committee at Dow
Chemical Company.
We hereby give O.C.A.W. the right to use our names as the Organizing Com-
mittee in letters to the Company and on handbills.
The Company's response to the Chemical Workers' first letter crossed in the mail'
the Chemical Workers' second letter. On April 17, 1964, plant manager W. J.
Barkley wrote a letter to the Chemical Workers which after acknowledging receipt
of the Union's letter of April 6, states:
We decline to recognize you as we have a good faith doubt that you repre-
sent a majority of employees of this plant in an appropriate bargaining unit.
Your attention is called to the fact that there was a representation election
at the plant in question by the National Labor Relations Board in August of
1963. At that time the employees voted an overwhelming vote rejecting rep-
resentation by District 50 of the United Mine Workers.
In view of the fact that we clearly come under the jurisdiction of the National
Labor Relations Board, we prefer not to accept your suggestions to circumvent
the National Labor Relations Board procedures.
The Chemical Workers replied to this letter on April 23. Referring to the Company's
assertion that it had a good-faith doubt that the Union represented a majority of its
employees, the writer stated, "[W]e are again prepared to prove in an unequivocal
manner that our union does represent a substantial majority of your employees so
that there no longer can be a good faith doubt on your part of the fact that our
union represents a substantial majority of your employees in your plant. With the
consent of the employees, we are enclosing photo-static copies of 106 signed Authori-
zation Cards of employees in your plant who have designated our union to repre-
sent them for purposes of collective bargaining." With this letter the Chemical
Workers enclosed photostatic copies of 106 authorization cards. Plant Manager
Barkley testified that he looked at the cards briefly, and he noticed the names of
many of the employees who had signed the cards but had no conversation with any
of them. Personnel Director Van Ordstrand testified that upon receiving the enve-
lope containing the cards he sealed the envelope and put it in his drawer without
counting the cards, without verifying the signatures , and without discussing the mat-
ter with any of the employees who signed the cards.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company never responded to the Chemical Workers' letter of April 23 but on
April 27 wrote to the Chemical Workers acknowledging receipt of its letter of April 16
and reaffirming the position given in its letter of April 16 and reaffirming the posi-
tion given in its letter of April 17.
On April 28, 1964, the Chemical Workers filed an amended charge in this pro-
ceeding alleging a violation of Section 8(a)(5) of the Act on the part of the Com-
pany. Subsequently, on June 11, 1964, the Company filed a representation petition
with the Board's Chicago Regional Office. The petition was dismissed by the
Regional Director on June 22, 1964, on the ground that no question concerning
representation exists because of the pendency of the charges against the Company
alleging violation of Section 8(a) (5) of the Act.
Both Plant Manager Barkley and Personnel Director Van Ordstrand testified that
they entertained a good-faith doubt concerning the Chemical Workers' claim that it
represented a majority of the Company's employees. Their reasons for-refusing to
recognize the Chemical Workers were that: (i) in the summer of 1963 another labor
organization had claimed that it represented a majority of the plant's employees but
was unable to sustain its claim at a secret-ballot election conducted by the National
Labor Relations Board, and (ii) they had received information which suggested that
many employees had signed union authorization cards, not because they desired union
representation, but in order to avoid conflict with other employees who were exerting
pressure upon them to sign such cards.
Barkley testified that he had been informed by the maintenance superintendent that
three employees who did not desire union representation had nevertheless signed
authorization cards at a Chemical Workers meeting in order to avoid being con-
spicuous at the meeting and in order to avoid ostracism had they refused to sign
Barkley never attempted to verify this information. Van Ordstrand testified that a
number of employees, specifically naming Theresa Herisco, Jimmy DeNicola, and
Jerry Toth, had informed him that they had signed cards although they were not con-
vinced they wanted the Chemical Workers to represent them. Van Ordstrand further
testified that it was reported to him by his office girls and also directly by 6 to 12
production or maintenance workers that some women, particularly some who were
working on the midnight shift, were placed under quite a bit of pressure to sign cards
for the Chemical Workers.
Whether the Company had such good-faith doubt concerning the Chemical
Workers' majority, in circumstances that it lawfully was entitled to decline to recog-
nize the Chemical Workers as the statutory representative of its employees, will be
discussed below and is a question separate and apart from whether the Company
genuinely believed that a majority of its employees had not freely signed authoriza-
tion cards The Chemical Workers mailed to the Company 106 cards purportedly
executed by employees within an appropriate unit composed of not more than 133
persons. Neither Barkley nor Van Ordstrand made any attempt to check the authen-
ticity of these cards and neither of them at the hearing made any claim that they
believed these cards did not bear the genuine signatures of employees who worked
for the Company within the appropriate unit. They contend, however, that they had
received information indicating that employees had signed these cards in order to
avoid ostracism by their fellow workers or other unpleasant "social" pressures.
Again, neither Barkley nor Van Ordstrand made any attempt to determine the extent
of these pressures. Their testimony suggests that they suspected about 15 or 20
employees had signed cards for such reasons. Even if this were true and even if the
cards signed by these employees were disregarded, there still remained about 86 valid
and untainted authorization cards for a unit of no more than 133 employees. In
these circumstances I do not believe that either Barkley or Van Ordstrand entertained
a genuine doubt that a majority of the Company's employees within the appropriate
unit freely had signed authorization cards on behalf of the Chemical Workers.
C. Conclusions
1. As to the discharge of Lillian Piatek
Respondent's position is that Mrs. Piatek was discharged because she refused to
perform overtime work on Sunday, March 15, and because she sought to influence
other employees to refuse weekend work. According to Curtis, Piatek's refusal to
work on March 15 triggered his decision to discharge her. However, when on March 9
he asked her to work the next Sunday, he probably anticipated that she would
refuse. Previously, whenever he had requested Piatek to work on Sundays she had
declined to do so and he had acquiesced in the arrangements whereby she was
excused from Sunday work. Nevertheless, on March 9, without warning Piatek of the
THE DOW CHEMICAL COMPANY 1161
consequences which might attend her refusal to work the next Sunday," he seized
upon her refusal as the ostensible reason for immediately terminating her employ-
ment. Had he chosen to do so, in making the work assignments for the weekend
of March 14-15, Curtis could have obliged Piatek in her desire not to work on
Sunday. His explanation for ignoring her preferences, when in the past he was able
to accommodate them, was that he wished to impress upon the employees that super-
vision was going to run the shop and that management's prerogatives were not going
to be confined by Piatek's convenience. I find this explanation unconvincing. The
circumstances referred to above suggest not that Piatek's refusal to work on March 15
was the moving reason for her discharge but rather that Curtis was seeking to conceal
his real reason by provoking Piatek into an act of disobedience. On the other hand,
Curtis testified that he believed Piatek was responsible for the March 7-8 episode
and this fact also influenced his decision to discharge her. Unlike Piatek's refusal to
work on March 15, this latter factor appears to be both a plausible and sufficient
reason for Curtis' decision to terminate her employment and I find that it was his
dominant reason.
The intentions of Piatek and the other protesting employees was to remain
away from work not only for the weekend of March 7-8 but also for all succeeding
weekends at least until March 23 when the new schedule was to become effective.
Piatek testified, "We were trying to find a way to show the Company that we were
dissatisfied with the new schedule. And so, we decided not to work the week-ends."
In so doing the employees were acting in concert to achieve an objective for their
mutual benefit. Normally, employees engaged in concerted action to improve their
schedule of hours are protected by the Act against reprisals by their employer. How-
ever, such statutory protection does not attach to concerted action which takes the
form of a partial strike because then the employees are attempting "to work on terms
prescribed solely by themselves." John S. Swift Company, Inc., 124 NLRB 394, 397,
affd. 277 F. 2d 641, 646 (C.A. 7). A concerted refusal to work overtime may con-
stitute such partial strike.12 In this case, despite the fact that for the weekend of
March 7-8, Saturday and Sunday work was performed on a voluntary basis, Piatek
and the other employees, who had been seeking to exert concerted pressure upon the
Company by refusing to work weekends, had engaged in a strike because they purpose-
fully had withheld their services, which action resulted in an impairment of the Com-
pany's normal weekend production. The term "strike," as defined in Section 501(2)
of the Act, includes any concerted stoppage of work by employees or other concerted
interruption of operations by employees and, therefore, includes the deliberate, con-
certed refusal of a group of employees to volunteer for overtime work such as
occurred here. General Counsel, citing Wilder Finishing Co., Division of Jervis
Corporation, 138 NLRB 1017, argues that the strike was a protected activity because
the withholding of services, having taken place only once, was not of a recurrent
nature. As relates to the issues in this proceeding, the Wilder case merely affirms the
well-established principle that a strike of short duration, even if it occurs during
scheduled working hours, is a form of concerted activity within the reach of Section
7.13 The vice of the employees' conduct here was that their plan was to remain away
from work during the weekend of March 7-8 and then to repeat the procedure during
ensuing weekends. So long as the employees had embarked upon a scheme to with-
hold their services intermittently, they must be deemed to have been engaged in a
partial strike because they were attempting to work on terms prescribed solely by
themselves In such circumstances, if there was nothing more in the case, the Com-
pany lawfully could have discharged the participants, or any number of them, despite
the fact that the employees had only one opportunity to implement their plan before
the Company took such disciplinary action.14
n It is immaterial whether on March 9 Curtis asked her only once, as testified to by
Piatek, or twice, as testified to by Curtis, whether she would work the following Sunday
because in either case her discharge without warning was, under all the circumstances,
abrupt.
12 Brantly Helicopter Corporation, 135 NLRB 1412, 1416; John S. Swift Company,
Inc., supra; Honolulu Rapid Transit Company, Limited, 110 NLRB 1806; Valley City
Furniture Company, 110 NLRB 1589, 1594-1595, enfd. 230 F. 2d 947 (C.A. 6) , N.L.R.B.
v. Kohler Company, 220 F. 2d 3, 11 (C.A 7).
13 Cf. Blades Manufacturing Corporation, 144 NLRB 561, 566.
14Brantly Helicopter Corporation, supra; John S. Swift Company, Inc., supra; Valley
City Furniture Company, supra. General Counsel in his brief seeks to distinguish the
Swift case and similar cases. Despite his resourcefulness in developing purported dis-
tinctions, he does not point to any differences sufficiently material to affect the conclusion
that the absences on March 7-8 amounted to an unprotected partial strike. Similarly,
I find no merit in General Counsel's argument that a distinction should be made between
Piatek's participation In and purported leadership of the strike of March 7-8.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, General Counsel, citing Brantly Helicopter Corporation, 135 NLRB
1412, as authority, argues that Respondent condoned the weekend strike of March 7-8
and, therefore, violated the Act when it discharged Piatek for her participation in
and purported leadership of the strike.15 I agree that the Brantly case is controlling.
In the Brantly case, a number of employees had engaged in a partial strike by con-
certedly refusing to perform overtime work on Saturday, June 3, 1961. The follow-
ing Monday the company's general manager called the absentees together and told
them that he would overlook their failure to report on Saturday but warned them that
any future conduct of the same nature would be grounds for dismissal. Subsequently,
the company learned that Don Lynch had been responsible for the partial walkout
and discharged him for that reason. The company argued that when the employees
returned to work on the Monday after the walkout it did not know that Lynch was
responsible for organizing the strike and therefore had not condoned that aspect of
the unprotected activity. Lynch was discharged on June 30. The reason given him
was "Inability to work in the best interests of the Company," not his participation in
and responsibility for the June 3 strike. The Board, in finding that the company had
violated the Act by its discharge of Lynch, reasoned.
Although it must have realized that the June 3 incident signified something more
important than the coincidental absence of 14 individuals from work that day,
Respondent decided the next working day that it would take no disciplinary
action against any of the participants. Its decision must have taken into account
the almost certain probability that concerted activity of such scope had to be
proposed by someone, yet it neither advised the absentees that it considered
anyone primarily responsible for the incident or that it intended to conduct any
further investigation of the matter. Its decision, in short, was to forgive and
forget all aspects of the incident, including both leadership and participation.
Having condoned the matter, Respondent's subsequent change of heart and
determination to punish Lynch for his reputed instigation of the concerted
activity was in reprisal for his engagement in such activity.
"Condonation is a question of fact, and a determination of whether an employer
has forgiven unprotected activity of its employees requires an evaluation of all the
relevant conduct." 16 "Condonation requires a demonstrated willingness to forgive
the improper aspect of concerted action, to `wipe the slate clean.' After a condonation
the employer may not rely upon prior unprotected activities of employees to deny
reinstatement to, or otherwise to discriminate against, them." 17 In the Brantly case,
the Board reached its conclusion that the unprotected aspects of Lynch's activities had
been condoned upon the following facts: (1) On Monday the absentees were advised
that the company would overlook their failure to report for work the preceding Satur-
day; (2) the absentees were not informed that the company intended to investigate
the matter further or to discipline anyone who had been responsible for instigating
their concerted refusal to work the previous Saturday; and (3) the company did not
advise Lynch that the reason for his discharge was his participation in and leadership
of the partial strike. Similarly, in this case, when Piatek was discharged Respondent
concealed from her the moving reason for its action by not adverting to her absence
from work for the weekend of March 7-8 or to its belief that she was one of the
persons responsible for the episode. Here, too, Respondent did not inform the ab-
sentees that it intended to investigate the matter or to discipline anyone who had been
responsible for instigating the concerted refusal to work the weekend of March 7-8,
and by its conduct indicated to the absentees that it would overlook their failure
to work those days. The only significant difference in the factual situations between
the Brantly case and the instant proceeding is that in the Brantly case on the first
working day after the strike the general manager specifically told the absentees that
the company would overlook their failure to report for work the preceding Saturday,
whereas here no statement to such effect was made However, condonation may be
demonstrated by conduct as well as by specific expressions of forgiveness.
Lawrence M. Cohen, counsel for General Counsel in this case, submitted a compre-
hensive brief which, in addition to a thorough analysis of the facts, offers perceptive
arguments in support of the various positions advanced by him However, because of
my findings herein , it is not necessary for me to treat with all his arguments.
10M. Eskin & Son, 135 NLRB 666, 667 , affil. Bub nom . Confectionery & Tobacco Drivers
and Warehousemen's Union, Local 805, IBTCWHA v. NL.RB., 312 F. 2d 108 (C.A. 2).
17 Confectionery & Tobacco Drivers and Warehousemen's Union, Local 805, IBTCWHA
v. N.L.R.B., 312 F. 2d 108, 113 (C.A. 2). Cf. Mackay Radio and Telegraph Company,
Inc., 96 NLRB 740.
THE DOW CHEMICAL COMPANY 1163
On Monday, March 9, Respondent reprimanded no one for her failure to work
the previous weekend and did not otherwise indicate to the employees an intention to
discipline anyone for such reason. To the contrary, on that day, in a departure from
its customary practices in the past, Respondent began to take steps to reduce the
chance of a similar disturbance the next weekend by giving employees specific week-
end assignments rather than depending upon employees to volunteer for such work.
The assignments were made in such manner as to indicate to the employees that
Respondent was concerned only with future weekend work and not with the absences
on the previous weekend. The case of Adella Pateriomus is illustrative. At the
meeting of March 6, she vigorously expressed to management her dissatisfaction with
the new schedule and stated that she did not intend to work the next several weekends.
She also was absent from work on March 7 and 8 and showed herself to have been
as much or more of a leader of the episode than Piatek. On Monday, March 9, when
Pateriomus was asked whether she would work the next weekend, she first told her
foreman, Eugene Gabryel, that she would not do so. Later in the day (after learning
of Piatek's discharge and believing that she also might be discharged if she persisted
in her refusal) she advised her foreman that she would work the following weekend.
Gabryel responded, "The office will be happy to hear this." In another conversation
on the same day Gabryel told her, "We knew if we got you to come in, the other girls
would come in." Even in the case of Piatek, Curtis' testimony was to the effect that
she would not have been discharged had she accepted his assignment for the week-
end of March 14-15. It is thus seen that Respondent's endeavor was to insure
attendance the following weekend rather than to discipline employees for their con-
duct on the previous weekend.
Furthermore, permitting striking employees to return to work usually establishes
that the employer has condoned, or has waived as a reason for discharge, their partici-
pation in an unprotected strike.is In this case the participants in the weekend strike
not only were permitted to return to work on Monday, March 9, but were specifically
requested to accept work assignments for the next weekend. No one was advised
that she might be discharged or otherwise disciplined for her participation in the
strike or was informed that the matter was under investigation. Such conduct was
more consistent with an attitude on the part of the Company of wiping the slate clean
and avoiding the recurrence of any similar strike than of seeking to penalize any of
its employees for their past conduct.la Under all the circumstances, I find that the
Company condoned the employees' strike on the weekend of March 7-8 and Piatek's
participation therein. Accordingly, I find that Respondent's discharge of Lillian
Piatek because she had participated with other employees, who also were protesting
the announced change in their work schedule, in a concerted refusal to work on the
weekend of March 7-8, was an act of interference , restraint , and coercion infringing
upon rights guaranteed by Section 7 of the Act and therefore constituting an unfair
labor practice in violation of Section 8(a) (1).
2. As to Respondent's refusal to bargain
General Counsel and Respondent in their comprehensive briefs have set forth
myriad arguments to support their respective positions . Some of these arguments
'-Alabama Marble Company, 83 NLRB 1047, 1048, enfd. 185 F. 2d 1022 (CA. 5),
cert . denied 342 US 823 The facts in that case are similar to those in the instant
proceeding There, the employer discharged four union officers after the employees had
returned to work following a strike in preach of a no-strike clause contained in an
existing agreement The employer contended that it had not condoned the strike ac-
tivities of the four union officers because at the time it had agreed to allow them to
resume work it had no knowledge of the role played by them in the work stoppages
The Board rejected this argument on the ground that "the Respondent knew that the
employees had engaged in a work stoppage in breach of contract, yet the Respondent
agreed to permit all employees to return to work without stipulating that it reserved to
itself the privilege of disciplining any participating in the work stoppage "
19 Cf. Complete Auto Transit, Inc, 134 NLRB 652, where it was found that the em-
ployer had condoned participation in an unprotected strike but not its instigation. Un-
like the situation here, in the Complete Auto case, the employer , although permitting all
strikers to return to work, indicated clearly that he intended to get to the bottom of
the matter and find out who "instigated " the strike . Similarly , in Bechtel Corporation,
127 NLRB 891 , where the employer promptly endeavored to ascertain who was respon-
sible for an unprotected walkout and where the employees were not misled into believing
they would not be discharged, the Board held that permitting the striking employees to
return to work did not establish condonation of the activities of the employees who were
responsible for the strike
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are based upon assumptions of fact favorable to the contentions advanced and are
disposed of by the findings hereinabove made. Accordingly, it is well to state what
is not involved in this case. First, there is no question that when the Union made its
recognition demand, a majority of the employees in an appropriate unit had executed
authorization cards designating the Chemical Workers as their representative Second,
Respondent had no acceptable basis for believing that a substantial number of such
authorization cards, sufficient to affect the Chemical Workers' majority, was coercively
obtained or otherwise invalid. Third, General Counsel has not established by a
preponderance of the evidence independent of Respondent's refusal to recognize the
Chemical Workers, that the Company was motivated in its rejection of the Union's
request for recognition by a desire to gain time within which to dissipate the Chemical
Workers' majority or by a rejection of the collective-bargaining principle. Thus,
there remains the question whether an employer who has not engaged in contempo-
raneous unfair labor practices 20 and has exhibited no union animus is privileged for
a period of 1 year following a Board-conducted election to refuse to bargain with the
labor organization that lost the election or any other labor organization despite the
fact that such labor organization may have obtained authorization cards from a
majority of the employees after the date of the election.
When reduced to their essentials General Counsel's principal contentions can be
stated simply. By applying a strict interpretation of statutory language to the record
facts he develops a syllogism which he argues should govern the outcome of this
proceeding. According to the General Counsel: it is an unfair labor practice under
Section 8(a) (5) of the Act for an employer "to refuse to bargain collectively with
the representatives of his employees, subject to the provisions of section 9(a)," which
section provides without qualification that "[r]epresentatives designated or selected
for the purposes of collective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive representatives of all the employ-
ees in such unit ...", the Chemical Workers had been so designated when, on April 6,
1964, it made its demand for recognition upon Respondent, therefore, by rejecting
such demand, Respondent violated Section 8(a) (5) of the Act Through the applica-
tion of this syllogism to a compartmentalized construction of the Act (that is, constru-
ing each section separate and apart from other sections unless such other sections are
incorporated by specific reference), the General Counsel finds it unnecessary to
harmonize the result contended for with conflicting considerations which arise from
Sections 9(c)(3), (2), and (1)(B), 8(c), 8(b)(7)(B), and 8(b)(4)(C).
Respondent, on the other hand, condemns any circumscribed and mechanistic con-
struction of the Act and argues, citing in support 3 Sutherland, Statutory Construction,
sec. 4703 at 336 (3d ed. 1943), that "each part or section should be construed in
connection with every other part or section so as to produce a harmonious whole."
Respondent's contentions regarding the incompatibility of General Counsel's con-
struction of Section 8(a)(5) with the purposes of other sections of the Act will be
discussed below. Respondent also contends as a defense to this proceeding that it
had a good-faith doubt of the Chemical Workers' majority.2' General Counsel
acknowledges that there was no violation of Section 8(a)(5) if Respondent's rejection
of the Chemical Workers' recognition demand was motivated by a good-faith doubt
of the Union's majority But, consistent with his syllogism, General Counsel asserts
that mere proof that the Company knew the Chemical Workers had obtained authori-
zation cards from a majority of its employees plus the absence of evidence adduced
on behalf of Respondent that it had a reasonable basis for believing that a sufficient
number of the cards to affect such majority was coercively obtained or otherwise
invalid overcomes Respondent's defense of good-faith doubt. In so arguing General
Counsel attributes to the authorization cards almost the same decisiveness and
finality as to ballots cast in a Board-conducted election and would thus deny the
20 The discharge of Lillian Piatek was for reasons unrelated to union activity and, al-
though the discharge constituted an infringement upon employees' rights to engage in
concerted activities for the purpose of mutual aid or protection in violation of section
8(a)(1), it did not, nor have the tendency to, interfere with, restrain, or coerce em-
ployees in the exercise of their right to self-organization or to join or assist any labor
organization Further demonstrating the absence of such effect is the fact that the
Chemical Workers successfully organized Respondent's employees after Piatek's discharge
Cf Cameo Lingerse, Inc, 148 NLRB 535.
21 This contention is separate and apart from Respondent's claim, which I have found
to be without merit, that it entertained a good-faith doubt that the Chemical Workers
had obtained 1Nithout coercion valid authorization cards from a majority of its employee,
THE DOW CHEMICAL COMPANY 1165
Company, and deprive its employees of, an opportunity at an election "conducted,
under conditions as nearly ideal as possible, to determine the uninhibited desires
of the employees." 22
I believe General Counsel's position with regard to Respondent's defense of "good
faith doubt" is in conformity with the Board's most recent decisions However, a
review of the development of Board policy in this area is necessary for appreciation
and resolution of Respondent's other contentions as well as for disposition of the
questions raised by the Company's "good faith doubt" defense. Insofar as it con-
cerns matters in issue in this case, the 1947 amendments to the Wagner Act did not
change Section 8(5) or Section 9(a) but significantly modified Section 9(c). Prior
thereto, under Section 9(c), the Board was empowered to certify representatives with-
out an election. Initially, under Board practices, if a labor organization presented
evidence which the Board considered adequate proof that such organization repre-
sented a majority of the employees it would be certified without the necessity of an
election Cards signed by a majority of the employees authorizing a labor organiza-
tion to represent them was considered adequate proof of majority.23 Furthermore,
the employer had the obligation of cooperating with the union to a reasonable extent
when the latter was attempting to prove its majority. If the employer did not accept
any reasonable suggestion advanced by the union for resolving a question concerning
its majority status, then "the employer could not claim in good faith that its uncer-
tainty as to the union's majority justified its refusal to bargain." 24 Correlatively, the
Board was then of the view that "where a demand has been made and the employer
has refused to bargain collectively, the employees have a choice of either proceeding
under section 8(5), or asking an investigation and certification under section 9(c). It
is obvious that a labor organization will normally invoke the 9(c) proceeding after a
refusal to bargain only where it is uncertain of the right to represent a majority or as
to the propriety of the unit, or where it does not wish to establish that right except
through the use of a secret ballot." 25
After some years of experience the Board began to question the conclusiveness of
card checks 26 and found "that an election is generally the most effective and satis-
factory method of resolving representation disputes." 27 Accordingly, "the election
was the method almost invariably utilized by the Board in contested [representation]
cases ever since 1939." 28 In The Cudahy Packing Company, 13 NLRB 526, 531-
22 General Shoe Corporation, 77 NLRB 124, 127. Although Respondent strenuously
argues that the Board should not impose undue restrictions upon the opportunity of
interested parties to resolve a dispute concerning representation by means of an election,
there is no question that since the earliest days of the Act an employer could voluntarily
recognize a labor organization as the statutory representative of his employees and thereby
deprive the employees of the opportunity of making their decision under the safeguards
afforded by a secret-ballot election conducted by the Board. This is a hazard employees
assume when they sign authorization cards and such risk must be taken by a substantial
number of employees as a prerequisite to meeting the statutory requirements for an elec-
tion. See Section 9 (c) (1) (A) of the Act and Section 101 8 of NLRB Statements of
Procedure , Series 8, as amended In practice it is uncommon for employees to sign
authorization cards, not as an unqualified designation of representatives, but only in order
that the Board might conduct an election where every employee would have an opportunity
to express his preference. Cf. Englewood Lumber Company, 130 NLRB 394. See also
International Ladies' Garment Workers' Union, AFL-CIO (Bernhard-Altmann Texas
Corp.) v. N.L.R.B., 366 U.S 731, where an employer and union were found to have
violated the Act because the employer had accorded to, and the union had accepted, rec-
ognition as the majority representative at a time when the union did not represent a
majority despite the good-faith belief on the part of both that it did
23 Second Annual Report of the National Labor Relations Board, p. 108.
24 Third Annual Report of the National Labor Relations Board, p. 106.
25 Second Annual Report of the National Labor Relations Board, pp. 105-106.
zs See: Joe Hearin Lumber, 66 NLRB 1276, 1283, where the Board stated, "We do not
feel, however, that a card check reflects employees' true desires with the same degree of
certainty as . . . an election." Electra Metallurgical Company, 69 NLRB 772, 774,
where the Board stated, that it "will not consider the card check as satisfactory as the
election method of ascertaining the true desires of employees " And National Waste
Material Corp., 93 NLRB 477, 478, where the Board observed, "We have heretofore held
that a card check is not entitled to the conclusive effect normally given to a certification
of representatives based on a Board-directed election."
Y7 Eighth Annual Report of the National Labor Relations Board, p. 52.
2a Thirteenth Annual Report of the National Labor Relations Board, p 21, footnote 7.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
532, the Board explained its change of policy by pointing out that its certification
"looks to the initiation of collective bargaining between the Company and its employ-
ees . [and] the bargaining relations which result will be more satisfactory from
the beginning if the doubt and disagreement of the parties regarding the wishes of the
employees is, as far as possible, eliminated. Although in the past we have certified
representatives without an election . . . we are persuaded by our experience that the
policies of the Act will best be effectuated if the question of representation which has
arisen is resolved in an election by secret ballot."
The reevaluation of the significance of union authorization cards called for a revi-
sion of policy regarding the relationship of the procedures under Section 8(5) with
those under Section 9(c). Whereas, at first, a labor organization was privileged to
bypass Section 9(c) and was permitted to "proceed directly under section 8(5)" to
establish its representative status,220 the Board ater expressed its opinion that a bona
fide doubt concerning a labor organization's alleged majority "constitutes a formidable
obstacle to the practice and procedure of collective bargaining [which] section 9(c)
is designed to remove ... by creating machinery for the determination of such repre-
sentatives." 30 The precedence thus given to Section 9(c) meant that, in most
instances , an employer who questioned a labor organization 's claim of majority could
insist upon a Board-conducted election to resolve such dispute and did not have to
content himself with a card check pursuant to the procedures of either Section 8(5) or
Section 9(c).31 However, this did not mean that an employer in all circumstances
was privileged to condition recognition of a labor organization upon a demonstration
of its majority in a Board-conducted election. Where the question of representation
was raised not because the employer entertained any doubt concerning the union's
majority but in order to delay and perhaps thereby avoid altogether collective bargain-
ing then a proceeding under Section 8(5) would lie without a preliminary resolution
of the representation question pursuant to the procedures of Section 9(c). Thus, in
the Joy Silk Mills case,32 the Board stated:
We have previously held that an employer may in good faith insist on a Board
election as proof of the Union's majority but that it `unlawfully refuses to bar-
gain if its insistence on such an election is motivated, not by any bona fide doubt
as to the union's majority, but rather by a rejection of the collective bargaining
principle or by a desire to gain time within which to undermine the union ' In
cases of this type the question of whether an employer is acting in good or bad
faith at the time of the refusal is, of course, one which of necessity must be
determined in the light of all relevant facts in the case, including all unlawful
conduct of the employer, the sequence of events, and the time lapse between
the refusal and the unlawful conduct.
The court of appeals elaborated upon the Board's rationale as follows:
It has been held that an employer may refuse recognition to a union when
motivated by a good faith doubt as to that union's majority status .... When,
however, such refusal is due to a desire to gain time and to take action to dissi-
pate the union's majority, the refusal is no longer justifiable and constitutes a
violation of the duty to bargain set forth in section 8(a) (5) of the Act .... The
Act provides for election proceedings in order to provide a mechanism whereby
an employer acting in good faith may secure a determination of whether or not
the union does in fact have a majority and is therefore the appropriate agent
with which to bargain. Another purpose is to insure that the employees may
freely register their individual choices concerning representation. Certainly it
is not one of the purposes of the election provisions to supply an employer with
a procedural device by which he may secure the time necessary to defeat efforts
toward organization being made by a union.33
In 1947, Congress by amendments to Section 9(c) of the Wagner Act limited the
Board's former discretionary power to utilize methods other than the secret-ballot
election in ascertaining representatives . The amended Act requires the Board to
2D Second Annual Report of the National Labor Relations Board, p 92
30 Sixth Annual Report of the National Labor Relations Board, p 54
"Until the 1947 amendments of the Act, the Board in nondisputed cases continued its
practice of issuing certifications following satisfactory evidence of majority established
pursuant to consent cross-check agreements See Twelfth Annual Report of the Na-
tional Labor Relations Board, p 14 ; Ninth Report of the National Labor Relations
Board, pp 9-10; Electro Metallurgical Company, supra.
32 85 NLRB 1263, 1264, enfd 185 F. 2d 732 (CAD C ), cert. denied 341 U S 914
33 Joy Silk Mills, Inc v. N L.R.B., 185 F 2d 732, 741 (C.A D C )
THE DOW CHEMICAL COMPANY 1167
conduct an election if a question of representation is found to exist. Conforming,
substantially with the policies it generally had been following since 1939, the Board
restated an employer 's obligation when confronted with a demand for recognition to
be as follows:
An employer acting in good faith may insist , as a condition precedent to recogni-
tion , that the union submit proof that it represents a majority of employees in
the unit and that the proof be made through the medium of a Board-directed
election . But when the employer does not make its request for proof of majority
in good faith , as when it is made against a background of unfair labor practices
intended to destroy the Union 's majority , noncompliance with the request does
not constitute a defense to a refusal to bargain charge.31
Accordingly , an employer who challanged the union 's majority claim was not
required by the Board to "accept majority proof in the form of union authorization
cards," provided that his insistence on an election and his rejection of a union's offer
of other evidence to demonstrate its majority was not "a device for evasion of the
statutory bargaining duty." 35
The right of an employer to insist upon a Board-directed election is not absolute but
depends on the employer 's good faith .3° In proceedings under Section 8(a) (5) the
burden had been on the General Counsel to negate the existence of such good-faith
doubt before a violation of the Act was found . Contemporaneous conduct on the
part of the employer constituting infringements of Section 8(a) (1) or ( 3) of the Act
usually was found sufficient to overcome an employer 's claim of good-faith doubt.
Occasionally , other conduct on the part of the employer not by itself amounting to a
violation of the Act was adequate to convince the Board that the employer was with-
holding recognition not because of a good-faith doubt of the union's claim but in
order to gain time within which to dissipate the union 's majority or because he was
opposed to fulfilling his statutory obligation to bargain collectively with the repre-
sentative of its employees . With its decision in Fred Snow , et al., d/b/a Snow &
Sons 37 the Board has modified its position with respect to where the burden of
establishing the existence or absence of a good-faith doubt rests . It is the Board's
present view that good -faith doubt is a defense to an 8 ( a)(5) charge which the
employer must raise and prove and it is his obligation , in the first instance, to produce
"evidence supplying [a] basis for . . . doubting the majority claim made by the
°4 Thirteenth Annual Report of the National Labor Relations Board, p. 60 ; see also
Twenty-first Annual Report of the National Labor Relations Board, pp 87-88
35 Twentieth Annual Report of the National Labor Relations Board, p. 92
S°Twenty-fourth Annual Report of the National Labor Relations Board, p 75. In
United Mine Workers of America v . Arkansas Oak Flooring Company , 351 U . S 62, 72,
the court stated that a "Board election is not the only method by which an employer may
satisfy itself as to the union ' s majority status ," and observed that where a majority is.
conceded Sections 7 and 9 ( a) of the Act obligates the employer to recognize the designated
union. General Counsel and Respondent differ as to the import of the Arkansas Oak
Flooring case insofar as it affects the question under discussion General Counsel's view
is that an employer is not entitled to an election if the union by some reasonable means,
other than through a Board -conducted election , can demonstrate that it was designated as
representative by an uncoerced majority of the employees in an appropriate unit Re-
spondent , on the other hand , contends that the Arkansas Oak Flooring case and also the
later decision in N.L.R.B. v. District 50, United Mine Workers of America ( Bowman Trans-
portation, Inc ), 355 U S 453, stand for no more than that the Act does not prohibit
an employer from voluntarily recognizing a union without a Board - conducted election.
Neither of these decisions discussed the circumstances under which an employer lawfully
might refuse to recognize a union and insist upon a Board - conducted election as a con-
dition to its obligation to bargain collectively . Thus, whatever implications might argua-
bly be drawn from the Arkansas Oak Flooring case, the Respondent is correct that the
decision does not (except possibly by way of dictum ) enunciate any rule circumscribing
an employer's right to withhold recognition until the union has established its majority
at a secret-ballot election conducted under the auspices of the Board Likewise, this
question is not reached by the following dictum of the court in International Ladies' Gar-
ment Workers' Union, AFL-CIO ( Bernhard-Altmann Texas Corp ) v N.L.R .B, 366 U.S
731, 740: "Assuming that an employer in good faith accepts or rejects a union claim of
majority status, the validity of his decision may be tested in an unfair labor practice
proceeding ." See also N L R,B v. Air Master Corporation , et at 339 F. 2d 553
(C.A 3).
37134 NLRB 709, enfd 308 F. 2d 687 (C A 9).
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union." 38 An unsupported contention that authorization cards do not reliably reflect
the employees' choice will not suffice as a basis for doubting a union's majority
claim 39 In Snow & Sons the employer repudiated the results of a card check to
which they had given their consent and insisted upon a Board-conducted election.
The Board, in finding that the employer had violated Section 8(a)(5) of the Act,
reasoned'
[W]e see no warrant for invalidating the card check and therefore find that
Respondent had no reasonable doubt as to the Union's majority status. That this
is so, is further apparent from Respondent's position that it wanted an election
because the employees might change their minds. The Board has held that the
right of an employer to insist upon a Board-directed election is not absolute.
Where, as here, the Employer entertains no reasonable doubt either with respect
to the appropriateness of the proposed unit or the Union's representative status,
and seeks a Board-directed election without a valid ground therefor, he has failed
to fullfill the bargaining requirements under the Act 40
Respondent contends that it had "a `reasonable doubt' about the union's representa-
tive status within the meaning of the Snow & Sons principle and, therefore, that it did
not violate section 8(a) (5) of the Act when it refused to recognize the Union." This
argument, when related to the record facts, reflects Respondent's misunderstanding
concerning the reach of the Snow & Sons case, particularly as the decision has been
amplified in later cases. Restricted to its facts one can argue that Snow & Sons
stands for no more than that an employer who has recognized a union or has taken
action which was tantamount to recognition and later withdraws such recognition or
repudiates the procedure to which he had agreed and which would have resulted in
recognition may not successfully interpose as a defense to an 8(a)(5) charge that he
had a good-faith doubt of the union's majority.41 However, later cases make it clear
that the Board does not limit Snow & Sons in any such way. For instance, in Henry
Spen & Company, Inc., 150 NLRB 138, the Board found a violation of Section
8(a)(5) where the employer's only offensive conduct was its refusal to accept as
evidence of the union's majority any proof other than a Board-conducted election.
The Decisions of the Board since Snow & Sons show that the Board considers authori-
zation cards to bear persuasive finality as the indicia of employees' desires for repre-
sentation. Therefore, although an employer may not be motivated by a desire to
gain time within which to take action to dissipate a union's majority, nevertheless, he
may not insist that the union establish its majority by means of a Board-conducted
election. Unless he has some reasonable basis for believing that the union's authori-
zation cards are invalid (i e., the signatures were forged, cards were obtained through
coercive means or through misrepresentation, etc.), an employer's refusal to accept
the authorization cards as evidence of the union's majority will negate any claim of
good-faith doubt concerning majority that he may later advance in an unfair labor
practice proceeding.42 Contrary to Respondent, there is no burden upon General
ssMitchell Concrete Products Co, Inc., 137 NLRB 504, 505 But see Superes Drugs,
Inc, 150 NLRB 972
' Johnnie's Poultry Co., 146 NLRB 770; Roy Miller Freight Lines, Inc, 149 NLRB 1007.
4° See also Fred Snow, et al., d/b/a Snow & Sons v. N.L R B., 308 F. 2d 687, 692-693
(C.A. 9), where the court of appeals in its opinion enforcing the Board's Order, even
more clearly than did the Board, indicated that an employer may no longer refuse to
accept a card check as an adequate demonstration of a union's majority. After referring
to the principle that a good-faith doubt concerning a union's majority would be a defense
to an alleged violation of Section 8(a) (5) of the Act, the court stated:
The manner in which an employer receives reliable information of union representa-
tion, whether by accident or by design or even while the employer is seeking to avoid
receiving it, is of no consequence. Once he has received such information from a
reliable source, insistence upon a Board election can no longer be defended on the
ground of a genuine doubt as to majority representation . . . . Had the Snows
been told in advance of the legal significance of the signature verification and had
they then refused to participate in the signature verification procedure, they could
no longer claim that their insistence on a Board election was in good faith . . . .
Proof of an improper motivation for insisting upon a Board election warrants the
inference that the employer, when it refused to recognize the union, did not have
a reasonable doubt as to the union's majority status. But proof of such motivation
is not essential in order to make such a finding if lack of a reasonable doubt is
established in some other way.
41 See also Dixon Ford Shoe Co., Inc, 150 NLRB 861 ; Kellogg's, Inc., d/b/a Kellogg
Mills, 147 NLRB 342.
42 George Groh it Sons, 141 NLRB 931, enfd 329 F. 2d 265 (C A. 10).
THE DOW CHEMICAL COMPAN Y 1169
Counsel to prove that the Company in rejecting the Chemical Workers' claim for
recognition was not motivated by a good-faith doubt that a majority of its employees
would vote for the Union at a Board-conducted election 43 The question is not
whether Respondent had a good-faith doubt as to what the results of a Board-
conducted election would be, but whether Respondent had a good-faith doubt that the
Chemical Workers had obtained valid authorization cards from a majority of the
employees in the appropriate unit. Furthermore, the obligation is upon Respondent
to prove the existence of such doubt and not upon the General Counsel to prove its
absence. As Respondent has not met such burden, I find that it did not have a good-
faith doubt concerning the Chemical Workers' majority when it rejected the Union's
demand for recognition.
Regardless of any good-faith doubt concerning the Chemical Workers' majority,
Respondent asserts that it, nevertheless, had the right to withhold recognition until
the Union shall have been certified following a Board-conducted election. In support
of this further position Respondent contends:
1. Section 9(c) (1) (B) gives an employer the right to petition the Board to resolve
by a secret-ballot election the question of representation which is raised when he is
confronted with a recognition claim from a labor organization. To compel an
employer to accept the results of a card check or utilize methods other than a Board-
conducted election to obtain a determination of the representation question is to
impair the employer's statutory rights. Furthermore, incidental benefits attach to a
Board election such as freedom from any redetermination of representatives for a
period of 1 year should the labor organization win the election,44 protection against
secondary boycotts in support of recognition or bargaining demands by other labor
organizations should a labor organization be certified as a result of the representation
proceeding,45 and freedom from the possibility of violating Section 8(a)(2) of the
Act by innocently according recognition to a minority union 46 To require an
employer to recognize and to bargain with a union without a Board-conducted elec-
tion is to deny to him such incidental statutory benefits.47
2. The intent of Section 8(b) (7) (B) which makes it an unfair labor practice for a
noncertified union to engage in recognitional picketing for a period of 12 months
following a valid Board election was to grant employers and employees a year of
peace from additional claims for recognition.48
48 Cosmodyne 11anufacturing Company, 150 NLRB 96; Fleming & Sons of Cocoa ado,
Inc., a Division of Fleming & Sons, Inc, 147 NLRB 1271. See Be,nel Foam Products
Co., Inc, 146 NLRB 1277, where the Board stated with reference to its decision in Snow
it Sons "that where an employer entertains no reasonable doubt either with respect to
the appropriateness of the proposed unit or the union's representative status and seeks a
Board-directed election without a valid ground therefor, he has failed to fulfill the bar-
gaining requirements under the Act and thereby violates 8(a) (5) even though the em-
ployer did not embark upon a program of interference to dissipate the Union's majority."
44 Ray Brooks v. N.L R.B , 348 U.S. 96.
45 Section 8(b) (4) (C).
48lnternational Ladies' Garment Workers' Union, AFL-CIO (Bernhard-Altmann Texas
Corp.) v. N.L.R B , 366 U S. 731
47 See General Box Company, 82 NLRB 678, where the Board decided that even though
the employer was willing to recognize the petitioning labor organization without an elec-
tion, it would nevertheless process a petition filed by such labor organization pursuant to
Section 9(c) (1) (A) in order not to deprive the union of the incidental benefits of a
Board certification Although enacted to treat with an entirely different problem, Sec-
tion 9(c) (2) might be deemed to have some applicability. This section in pertinent part
reads:
In determining whether or not a question of representation affecting commerce exists,
the same regulations and rules of decision shall apply irrespective of the identity of
the persons filing the petition or the kind of relief sought . . . .
98 Rejecting a contention that Section 8(b) (7) (C) does not apply to picketing by a
majority union in an appropriate unit, the Board in International Hod Carriers' Build-
ing and Common Laborers' Union of America, Local 840, AFL-CIO (C. A. Blsnne Con-
struction Company), 135 NLRB 1153, 1162, said, "Such a construction is consonant with
the underlying statutory scheme which is to resolve disputed questions of majority status,
whenever possible, by the machinery of a Board election Absent unfair labor practices
or preelection misconduct warranting the setting aside of the election, majority unions
will presumably not be prejudiced by such resolution On the other hand, the admitted
difficulties of determining majority status without such an election are obviated by this
construction."
789-730-66-vol. 152-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Section 8(c) is intended to give to an employer the right to communicate his
views and opinions concerning the advantages and disadvantages of unionism. To
require an employer to accord recognition to a union solely on the bases of the fait
accompli of signatures on authorization cards-which are likely to have been secured
in a secret organizing campaign-is to deny the employer the opportunity to express
his views to his employees 49
4. Lastly, but most important, Section 9(c)(3) which in pertinent part reads, "No
election shall be directed in any bargaining unit or any subdivision within which, in
the preceding twelve-month period, a valid election shall have been held," gave
Respondent the right to reject all demands for recognition during the year following
the election conducted by the Board on August 7, 1963. In support of this contention
Respondent argues, "It is clear that the twelve-month limitation of section 9(c)(3)
precluded the Union from invoking the Board's processes to demonstrate its claimed
status through an election conducted by the Board The question then presented is
whether the Union could eliminate its legal disability by circumventing the statutory
prohibition of section 9(c) (3), and, by means of authorization cards, compel recogni-
tion from Dow."
The first three points; namely, those based upon Sections 9(c) (1) (B), 8(b) (7) (B),
and 8(c) are, in my opinion, disposed of either specifically or sub silentio in Snow &
Sons and cases applying the principle therein enunciated. However, I find merit to
Respondent's fourth point that by charging the Company with a violation of Section
8(a)(5), the Chemical Workers seeks to circumvent Section 9(c)(3) which barred
the Board from determining in a representation proceeding the Union's right to
recognition.50 In 1947, when Section 9(c)(3) was enacted and for approximately 7
years prior thereto an employer who, without engaging in conduct of the kind con-
demned in the Joy Silk Mills case, disputed a union's representation claim ordinarily
was entitled to have such dispute resolved by a secret-ballot election 51 Thus, the
effect of Section 9(c) (3) at the time of its enactment, in the light of the then prevail-
ing practices of the Board, was to give an employer the privilege of refusing to recog-
nize any labor organization for the same period of time that all labor organizations
(as well as the employer) were denied the right of an election. To resolve the ques-
tion of representation raised by the employer's rejection of a union's recognition
claim by a proceeding under Section 8(a) (5) at a time when no election can be con-
ducted by the Board under Section 9(c), not only would circumvent Section 9(c) (3)
of the Act, but also would achieve a result not anticipated by Congress when it
amended the Act in 1947.52 I am persuaded that Section 9(c)(3) gives an employer
the right for a period of 1 year following a valid election to refuse to recognize any
labor organization. This right is not absolute. The Board in Rocky Mountain Pho.'-
phates, Inc., has had occasion to consider a situation where an exception should be
made. I believe another exception would be made if the employer were to impede a
union 's organizational campaign through coercive or other condemnatory conduct.58
49 Contra, Snow d Sons, Johnnie's Poultry Co., Cosmodyne Manufacturing Company,
supra But see Texas Industries, Inc, et at v. NLRB , 336 F 2d 128 (C A 5), where
the court observed, "It is well settled that under section 8(c) the employer must be
regarded as a rightful contestant for his employees' loyalty in a union election." See
also Daykin, "The Employer's Right of Free Speech Under the Taft-Hartley Act," 37 Iowa
Law Review, 212, 217-218
51 General Counsel argues that the Chemical Workers' right to recognition is not de-
pendent upon an election and therefore Section 9(c) (3) does not excuse Respondent's
rejection of the Union's demand In support of this thesis the General Counsel cites
Rocky Mountain Phosphates, Inc, 138 NLRB 292 In that case, however, a union had
been certified following a Board-conducted election. There the employees had, by their
election vote demonstrated their desire to be represented by a bargaining agent, and the
issue was whether that choice would be given vitality during the certification year where
the certified union had become defunct. In this case, on the other hand, the employees
in the August 1963 election chose to be represented by no union. Western Meat Packers,
Inc, 148 NLRB 444, is not apposite because a Board-conducted election was not involved
in that case. General Counsel has directed my attention to the recent decision of Trial
Examiner Eugene E Dixon in Consolidated Badger Cooperative, Case No. 30-CA-76 I
have read the decision with interest but respectfully decline to adopt the conclusions
reached therein.
61 See footnote 28, supra.
Si "As a general rule it may be stated that legislative intent should be determined as
of the time the legislation goes into effect." 2 Sutherland, Statutory Construction (3d ed
1942) 304 See also Gullett Gin Cainnan,i. Inc v N.LR.B., 340 US. 361, 366.
5' See Ra,i Brooks v N T R B , 348 U S 96, 101, Ekco Products Company (Sta-Brite
D,uis,on), 117 NLRB 137
THE DOW CHEMICAL COMPANY 1171
Undoubtedly there are still other situations which would call for the application of an
exception. However, as Respondent's refusal to recognize the Chemical Workers was
not attended by any conduct indicating an effort to dissipate that Union's majority or
by other circumstances which should circumscribe the normal effect of Section
9(c) (3), I find that it has not violated Section 8(a) (5) by refusing to recognize or to
bargain collectively with the Chemical Workers during the period of time covered by
the instant complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall recom-
mend that it cease and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent on March 9, 1964, discharged Lillian Piatek in vio-
lation of Section 8(a)(1) of the Act, I will recommend that Respondent offer her
immediate and full reinstatement to her former or to a substantially equivalent posi-
tion , without prejudice to her seniority or other rights and privileges (The Chase
National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB
827). 1 will further recommend that Respondent make the aforesaid employee whole
for any loss of earnings she may have suffered by reason of her unlawful discharge
by payment to her of a sum of money equal to that which she normally would have
earned from the date of her discharge to the date of Respondent's offer of reinstate-
ment , less her net earnings during such period. The backpay provided for herein
shall be computed on the basis of calendar quarters in the manner prescribed in
F. W Woolworth Company, 90 NLRB 289 Interest at the rate of 6 percent per
annum shall be added to such net backpay and shall be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. By discharging Lillian Piatek Respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights guaranteed in Section 7 of the
Act, and has thereby engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a) (1) and Section 2(6) and (7) of the Act.
2. Respondent has not engaged in any unfair labor practices by reason of conduct
alleged in the complaint to have been in violation of the Act except insofar as such
conduct has been found hereinabove to have violated Section 8 (a) (1) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in the case, and pursuant to Section 10(c) of the Act, I hereby recommend that The
Dow Chemical Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from discharging or otherwise discriminating against its
employees for having engaged in concerted activities for the purpose of collective
bargaining or other mutual aid or protection
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Offer Lillian Piatek immediate and full reinstatement to her former or to a
substantially equivalent position, without prejudice to her seniority and other rights
and privileges, and make her whole for any loss of earnings she may have suffered by
reason of her unlawful discharge in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or to its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant to a determination
of the amount of backpay due to said employee.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its plant at Chicago, Illinois, copies of the attached notice 54 marked
"Appendix A." 55 Copies of such notice, to be furnished by the Regional Director
for Region 13 of the Board, shall, after being duly signed by an authorized representa-
tive of Respondent, be posted immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify said Regional Director, in writing, within 20 days from the date of
receipt of this Decision, what steps Respondent has taken to comply herewith 56
c4 For the reasons therein stated the form of notice has been drafted to conform with
the form of notice used by the Board in Brantly Helticopter Corporation, 135 NLRB
1412, 1419-1420.
511n the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
co In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
Section 7 of the Act provides: "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 in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, and shall also have the right to refrain from any or all such activities except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized in sec-
tion 8(a)(3)."
WE WILL NOT interfere with, restrain, or coerce any of our employees in the
exercise of the above rights.
The failure of certain employees to report for work the weekend of March
7-8, 1964, was not an activity protected by Section 7 because, although a "con-
certed activity for mutual aid or protection," it represented an attempt by
employees to work on their own terms. Nevertheless, as we condoned this
particular episode we will not discharge or otherwise discriminate against
employees for their failure to report for work that weekend.
WE WILL offer Lillian Piatek immediate and full reinstatement to her former
or to a substantially equivalent position, without prejudice to her seniority and
other rights and privileges, and make her whole for any loss of earnings she
may have suffered by reason of her discharge on March 9, 1964.
THE Dow CHEMICAL COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room 881
U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago,
Illinois, Telephone No. 828-7572, if they have any questions concerning this notice
or compliance with its provisions.