Cincinnati Chemical Works, Inc.

In the Matter of CINCINNATI CHEMICAL WORKS, INC. and UNITED MINE WORKERS OF AMERICA, DISTRICT 50 In the Matter of CINCINNATI CHEMICAL WORKS, INC. and UNITED MINE WORKERS OF AMERICA, DISTRICT 50, LOCAL 12289 Cases Nos. C-0187 and C-2557 respectively.Decided July 20, 1943 DECISION AND ORDER On May 12,1942, the Trial Examiner issued his Intermediate Report in the abov'o-mentioned Case No. C-2187, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and that it take certain affirmative action, as set forth in the copy of the Intermediate Report annexed hereto (IX-C-1551). Thereafter, the respondent filed exceptions to the Intermediate Report and a brief in support of the exceptions. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Pursuant to notice, a hearing was held before the Board at Wash- ington, D. C., on August 13, 1942, for the purpose of oral argument. The respondent and the Union were represented by counsel and par- ticipated in the hearing. On March 23, 1943, the Trial Examiner issued his Intermediate Report in the above-mentioned Case No. C-25.57, also finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and that it take certain affirmative action, as set forth in the copy of the second Intermediate Report annexed hereto (IX-C-1709). There- after, the respondent and the Union filed exceptions to the Intermediate Report and briefs in support of their exceptions. The Association filed a brief in support of the Intermediate Report. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings-are hereby affirmed. 51 N L. R. B.,^ No 90. 461 462x; DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 26, 1943, the Board, acting pursuant to Article II, Section 36 (b), of National Labor Relations Board Rules and Regulations- Series 2, as amended, ordered that Cases Nos. C-2187 and 0-2557 be consolidated. Pursuant to notice, another hearing was held before the Board at Washington, D. C., on June 17, 1943, for the purpose of oral argument on the consolidated cases. The respondent was represented by counsel and participated in the hearing; i none of the labor organ- izations appeared, but counsel for Julius Price, the discharged employee named in the complaint, and counsel for the Association submitted briefs in lieu of presenting oral argument. The Board has considered both Intermediate Reports, the exceptions and briefs filed by the parties, and the entire record in the cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiners, except as noted below : 1. In Case No. C-2187, the Trial Examiner has found that the respondent, by the statements and conduct of Richard Scherrn, inter- fered with, restrained, and coerced its employees in violation of Section 8 (1) of the Act, on the ground that Scherm is a supervisory employee. In Case No. C-2557, the Trial Examiner has also found Scherm to be a supervisory employee of the respondent, but he dismisses the allega- tion in the complaint that the respondent engaged in unfair labor practices, within the meaning of Section 8 (2) of the Act, in part on the ground that the competing activities of Scherrn, on behalf-of the alleged dominated labor organizations, and of the stationary engineers, whom the Trial Examiner also found to be supervisory, on behalf of the Union, cancel each other out. We do not agree with the findings of the Trial Examiners that Scherm is a supervisory employee for whose conduct the respondent is responsible; nor do we believe that the sta- tionary engineers are supervisory employees, since clearly they have no higher status in the plant than Scherm. Scherm has no authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees of the respondent, or effectively recommend such action. Moreover, it seems that he might'properly be included in any appropriate bargaining unit covering the other employees in the -raw material department. Therefore, we reverse the Trial Examiner's finding of interference, restraint, and coercion based on the activities of Scherm, and we shall dismiss the allegation in the complaint that the respondent has violated Section 8 (2) of the Act, on the ground that, since the respondent is not held responsible for Scherm's conduct, there I During the hearing and in its brief the respondent laid some stress upon a waiver filed by the Union in connection with a Pending representation case involving employees of the respondent (Matter of Cincinnati Chemical Works, Inc., Cases Nos. R-4100 and R-4101). This waiver in no way affects the Board's adjudication of the complaint cases herein involved , but merely precludes the Union from asserting the unfair labor practices alleged in Case No. C-2187 as objections to any election which the Board may direct in the repre- sentation case. CINCINNATI CHEMICAL WORKS, INC. 463 is insufficient evidence in the record to support a finding that the respondent dominated and assisted the Association and its predecessors. 2. In Case No. C-2187, the Trial Examiner has found that Julius Price was discharged because of his union activity. We agree with this finding. However, it is not clear whether the Trial Examiner concluded that the respondent had knowledge of Price's union activity from his subsidiary finding that Scherm knew of such activity by Price, or from other evidence not explicitly set forth in the Inter- mediate Report. In any event, there is substantial evidence in the record, and we find, that the respondent knew Price to be an active member of the Union at the time of his discharge. Accordingly we find, as did the Trial Examiner, that the respondent discriminatorily dischairged-,Price. We shall therefore direct the respondent to offer Price, immediate and full reinstatement with back pay, as recommended by the Trial Examiner, but if, since the hearing in this case, Price has been inducted into the armed forces of the United States, the applicable paragraphs of our Order, set forth below, shall be construed to mean that the offer of full reinstatement by the respondent shall be made upon application by Price within forty (40) days after his discharge from said armed forces, and that back pay shall be computed during the period from the date of his discriminatory discharge by the re- spondent to the date of his induction in said armed forces, and during the period from a date five (5) days after his timely application for reinstatement, as provided above, to the date of the respondent's offer of reinstatement, less his net earnings during those periods. However, nothing herein shall be regarded as affecting the respondent's obliga- tion to pay him immediately whatever amount is due him for the period from the date of his discriminatory discharge to the date of his induction into said armed forces. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Cincinnati Chemical Works, Inc., Norwood, Ohio, its officers, agents, successors and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Mine Workers of Amer- ica, District 50, or in Local 12298 thereof, or in any other labor or- ganization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in re- gard to their hire and tenure of employment, or any term or con- dition of their employment ; (b)' In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : , (a) Offer to Julius Price immediate and full reinstatement to his -former or substantially equivalent position, without prejudice to his seniority and other rights and privileges; - (b) Make whole Julius Price for any loss of pay he has suffered because of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he would nor- mally have earned as wages from December 22, 1941, the date of his discharge, to the date of the respondent's offer of reinstatement, less his net earnings during that period; (c) Immediately post in conspicuous places throughout the plants operated by it at St. Bernard, and Norwood, Ohio, and maintain for a period of at least sixty (60) consecutive days from the date of post- ing, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) ,of this Order; and (3) that the respondent's employees are free to become and remain members of United Mine Workers of America, District 50, and of Local 12289 thereof, and that the respondent will not discriminate against any employee because of membership in or 'activity on behalf of said organizations; (d) Notify the Regional Director for the Ninth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the respondent engaged in unfair labor practices, within the meaning of Section 8 (2) of the Act. INTERMEDIATE REPORT Case No. I -Y-C-1551 Mr. Alba B. Martin, for the Board. Mr. James R. Clark, of Cincinnati, Ohio, and Mr. E. R. Brunskall, of Norwood, Ohio, for the respondent. Mr. T M. Berry, and Mr. Ernest J. Waits, each of Cincinnati, Ohio, for Julius Price. Mr. Cecil W. Dane, of Detroit, Mich., for United Mine Workers of America, District No. 50, C. I. 0. • STATEMENT OF THE CASE Upon a charge duly filed on December 24, 1941 by the United Mine Workers of America, District 50, affiliated with the Congress of Industrial Organizations, CINCINNATI CHEMICAL WORKS, INC. 465 herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director of the Ninth Region (Cincinnati, Ohio), issued its complaint dated the 28th day of February, 1942, against Cincinnati Chemical Works, Inc, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act. Copies of the complaint accompanied by notices of hearing were duly served upon the respondent and the Union With respect to the unfair labor practices, the complaint alleged in substance that the respondent (1) since on or about August 1941 has engaged in a plan and continuous course of conduct which has interfered with, restrained and coerced its emplpoyees in their right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choos- ing and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and protection, and at all times after August 1, 1941,'has interfered with, restrained and coerced its employees in the exercise of, the rights guaranteed them in Section 7 of the Act by engaging in the following acts and conduct: (a) inquiring of its employees concerning their union affiliations; (b) discouraging the use of union buttons and other indicia of membership in the Union; (c) suggesting that the Union is trying to run the employees out of the plant; (d) urging, persuading and warning its employees to refrain from aiding, becoming or remaining members of the Union; (e) threatening the loss of their rositions to employees who continued active in or members of the Union; and (f) keeping under surveillance the activities, meetings and meeting places of said Union and of its employees, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act: (2) did on or about December 22, 1941, discharge Julius Price, one of its employees, and at all times since that date has refused to reinstate said Price to his former or equivalent position of employment because he had joined or assisted, the Union or engaged in other concerted activities for the purposes of collective bargaining or other mutual aid and protection thereby engaging in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. In its answer, filed on the first day of the hearing, and twice amended during the course of the hearing, the respondent denied that it had engaged in or was engaging in the unfair labor practices alleged, and with respect to Julius Price affirmatively averred that he was discharged because of unpatriotic statements. Pursuant to notice, a hearing was held on March 12, 16, 17, 18, and 19, 1942, at Cincinnati, Ohio, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner . The Board and the respondent were represented by counsel and Price personally by Mr. T. M. Berry and Mr Ernest J. Waits. All parties participated in the hearing and were afforded full opportunity to be heard , to examine and- cross-examine witnesses and to introduce evidence bearing on the issues At the conclusion of the hearing counsel for the Board moved to conform the complaint and all other formal documents and pleadings to the proof. The motion was unopposed and accordingly granted. All parties were afforded an opportunity to make oral argument at the conclusion of the hearing None of the parties argued orally. Leave to file briefs within 10 days of the close of the hearing was granted the parties . This later was extended to April 10, 1942. On April 9 respondent filed a brief. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record thus made, and from his observation of the witnesses, the undersigned makes, in addition to the above, the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Cincinnati Chemical Works, Inc., is a Delaware corporation. It operates two plants, one at Norwood and one at St. Bernard, two or three miles apart, and both within the State of Ohio. The Norwood plant employs about 300 workers and the St. Bernard plant, about 250 workers. The Company's business consists in the manufacture of dyes, intermediates for dyes, textile aids, tanning agents, pharmaceuticals, and sales of them. The Works use two types of raw materials, organic and inorganic. The former comes from St. Louis, Missouri ; East St. Louis, Illinois ; Midland, Michigan ; and. New York State ; the latter comes from St. Louis, Missouri ; Paintsville and Rittman, Ohio, and similar cities. At least seventy-five percent of the raw materials used by respondent in 1941 came to its plants in Ohio from outside the State of Ohio. About 90 percent of the respondent's products was shipped in 1941 from its plants in Ohio to points outside the State of Ohio and to South America and China. In 1941, the volume in value of these sales exceeded $500,000; and the volume in value of the purchases exceeded $500,000.' Respondent admits and the undersigned finds it is engaged in interstate com- merce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED United Mine Workers of America, District 50, affiliated with the ,Congress of Industrial Organ izatioiis, herein called the Union, admits to membership "em- ployees of the respondent, at its St. Bernard plant and is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restiuin and coercion Prior to August 1941 there was no labor organization in the respondent's plants. Early in'August the Union began its organizational drive among the employees at the St. Bernard plant and on August 21 the first union meeting was held. As an assistance to the drive the Union put out a weekly paper called the Cincinnati Chemical News, more commonly referred to as the Cin-Chem News, which was distributed in front of the plant before and after working hours. On October. 6 Cecil Dane, field representative for the Union, wrote the re- spondent stating that the Union represented a majority of the respondent's em- ployees and requesting a meeting with representatives of the respondent for the purpose of discussing the wages, hours, and working conditions of the em- ployees of the St. Bernard plant.2 The attempt of the Union to organize met with the expressed- opposition of several of the respondent's supervisory employees. the most active and out. spoken of which was Richard Scherm.' Early in October, and concurrent with 'Between 30 and 50 percent of this respondent's business is in production of war materials. 2 Nothing appears in the record to indicate whether respondent replied to this letter 2.Scherm's status as a supervisory employee is discussed and found below. CINCINNATI CHEMICAL WORKS, INC. 467 the receipt by respondent of the union letter above mentioned, the Association came into existence and Scherm became its leading supporter and organizer. Scherm's duties took him throughout the plant several times a day and he availed himself of this opportunity to discuss the Association with the em- ployees during working hours. He testified that he personally secured 25 mem- bers for the Association` According to Wardell Hudson, an employee in the St. Bernard plant, Scherm asked him, "which of the two unions did I prefer, and at the time I told him I didn't know ..." Q. By "which of the two unions" did you understand him to refer to? A I understood he was referring to the CIO and the Association. Clifford Bennett, another employee in the St. Bernard plant, testified that Scherm told him that, "the Independent union would be much better for me to join, and that if I joined the CIO, and an Independent would overrule it and throw the CIO out, may finally throw us out." Still another effort on Scherm's part to interfere with the rights of the employees was testified to by Frank Schwab, as follows : "I started out . . . to the stockroom after some bolts and met Richard Scherm. He asked me to join the Association and, I told him, no. I says, 'I joined the CIO and I wasn't going to carry water on both shoulders . . . " Q Did he say anything about the CIO? A. Well, he said the CIO wasn't any good ; I may be kicked out in the streets. Carl Norman, another employee of the St. Bernard plant, testified to similar conduct on the part of Scherm : "One day he come in there and I was working and he walked up to me and reached his hand out and he caught the button like that (illustrating), `Give me that button. (C. I. O. button) You haven't any busi- ness wearing it.' and I said, 'Go ahead, I can wear it . . .' Well, he insisted I join the Association . . . Oh, from time to time in December, in the month of December especially, he came to me and he told me that if r didn't pull off that button, everybody that was still a member of the CIO would not get their Christ- mas bonus, and so he put it on me so strong that I began to think it was true, so I withdrew the button, and I give him one dollar . . . and he wrote me a receipt . ." Q. What was that for? A Initiation fee. (in the Association) He said that everybody that remained a member of the CIO would cause a strike; in other words he told me that the CIO wasn't the thing for me, and it didn't mean anything to me One (lay we was unloading a car of salt and he walked in there and he held out both hands, just like this, you know, and he says, "Boys, if you want to be safe, come on in and join the Association " . . He says, "You better come in and join the Association " That was in the month of December. Julius Price testified to a conversation with Scherm about the last of August or the early part of September in which the latter, referring to Price's union activities and his button , said: "What are you trying to do here ? You trying to run the fellows out of the plant ?" Later, in November, Scherm threatened, "It Would be too bad if you didn't come to work one morning and couldn't get to work " Price further testified that on November 5, Scherm told him, "What I want to do is to see that you don't get nowhere " 4 Scherm testified that his activities in behalf of the Association were carried on only after receiving the advice of an attorney, who was the attorney of the Association during its organizational period, to the effect that as long as he was not on the weekly pay roll, was paid by the hour, and had nothing to do with hiring or firing, he was, eligible to join an association or even to organize one. 540012-44-vol 51-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned finds that the above acts and statements on the part of Scherm occurred as set out. The 'respondent seeks to avoid the responsibility for them by denying that Scherm is a supervisory employee. The Company styles Scherm variously as "a laborer like the others" of the yard gang, "a gang leader" and "a clerk." However, respondent failed'to submit work records or pay rolls to support its contention. Such records would have established Scherm's actual status in the plant, but the respondent chose to withhold that evidence and to rely solely upon the testimony of its officers and Scherm. Scherm denied that he had ever been designated a foreman. He testified that he was paid on an hourly basis as were the common laborers in the yard gang, that he did not attend the meetings of the supervisory employees and that his foreman was Barwig. It is clear from the record that Barwig was foreman of the yard gang, and that the yard gang consisted of 28 negroes and three white men. Scherm is one of the white men, Muthier, a cooper, a skilled craft, and Heidecker, a truck driver, are the others Scherm's duties, as described by Barwig, are as follows : We have a great deal of stock out there, and they are chemicals, they are in barels, and we get a detailed slip (requisition) to deliver that stuff to the various plants (departments). He (Scherm) has got to go and check all those detailed slips with the barrel tags, and that is one of his jobs to see that there is no mis- take made in the delivery of that raw material, which would cost quite a sum if there was a mistake. Q And do you go with him when he goes to the barrels? A. Oh, no . . . I have too much to do . . . He (Scherm) takes some of the work off my hands, yes, sir. [Italics supplied.] Dr. Brunskill, a company executive, testified, in describing the functions of foremen : "In each one of the departments are foremen capable of doing the work that is necessary to be done to keep these departments feeding to the manufac- turing departments the materials, and taking away the finished materials that are necessary." [Italics supplied.] Upon a comparison of the above it becomes apparent that Scherm's duties conform with the duties of a foreman from Brunskill's own definition of such. It is further established by Barwig's testimony that he has too much to do and that Scherm takes some of the work off his hands. This is further substantiated by the testimony of six employees,' most of whom work in the yards, to the ef- fect that they take orders from Scherm and that Scherm is regarded as boss of the yard gang. One of the yard gang, Ward, considers Scherm not "as much of a boss as Barwig," and another, Bennett," considers Barwig "a higher boss 5 Otto Barge, Carl Norman, Wardell Hudson , Willie Coles, Clifford Bennett, and Vaughn Ward. 6 Bennett testified as to the circumstances incident to his signing Respondent's Exhibit No 3, which conflicted with his testimony at the hearing and which purported to be his signed statement that he regarded Barwig as his foreman and Scherm as only a leadman, as follows : On Friday, March 13. 1942, and after the first day of the hearing, he was called to the executive offices of the respondent about 4 p. in He was there interviewed by Clark , counsel for respondent and Dr Brandli, plant manager Clark asked him who his boss was and Bennett testified that he replied : "I said Scherm was my boss " Q Then did Dr Brandli say anything to you? A. He said, "Clifford. Scherm is not your boss" . . . He said , "Scherm is only your leadman," and he said, "Mr. Barwig is your boss." He said, "Mr. Barwig, gives Scherm all your orders and Scherm hands them to you. He is only your leadman," that is the words he said . . Well, the girl (stenographer) was sitting right there, and when I told him that Scherm was my boss and the girl started writing, Mr. Clark CINCINNATI CHEMICAL WORKS, INC. 469 than Scherm." Norman testified that Barwig told him that Scherm was a foreman. The undersigned credits Norman's testimony. The above, in the opinion of the undersigned, clearly indicates that Scherm is an assistant to Barwig, and as such, an assistant foreman,' and the undersigned so finds. The undersigned finds that Scherm made the statements and engaged in the activities above set forth. The undersigned further finds that by so inquiring of its employees concerning their union affiliations, by discouraging the use of union buttons and indicia of membershipi n the Union, by suggesting that the Union was trying to run the employees out of the plant, by urging, persuading and warning its employees to refrain from aiding, becoming or remaining mem- bers of the Union and by threatening the loss of their positions to employees who continued active in or members of the Union, above related, the respondent interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharge Julius Price was first employed by respondent in March or April of 1941. He was assigned to the benzidine department where he worked until his discharge on December 22, 1941, by Dr. Brandli, plant manager. The complaint alleged that the respondent discharged Price because of his activities on behalf of the Union. The respondent contends that he was dis- charged for unpatriotic statements on the premises of respondent on December 8, in substance that the Japs had the day before bombed Pearl Harbor and sunk some United States ships and he hoped they would sink some more. Scherm claims to have come upon a group of employees talking in the aisle of the blue house and to have overheard Sam Phelps say, "Julius, how can you say anything about a country that you live in when you don't know anything about any other country?" Scherm testified that that was all he heard, that he did not hear the remark by Price which prompted this question. Scherm testified that the other employees in the group were Roosevelt Smith, Clifford Bennett, and William Oglesby. Scherm further testified that later that evening he mentioned to Rogert, a chemist in the plant, "Mr. Price must be shooting off said, "That will never do," and Dr. Brandli told Mr. Clark and told me that Scherm was not my boss. Then Mr. Clark dictated to the girl as if I was saying it. Q. Why did you sign that statement that day? A. They said, "Sign it," and they didn't tell me why to sign it or nothing. They said, "Sign it," that is all. Clark's testimony at the hearing included the following in substantiation : I asked him, or one of the things I asked him, "Who is the boss? Who is your boss?" He said Barwig was his foreman and he took orders from Scherm. I said, "Is Scherm the boss," and he said, 'Yes, as far as I know." I turned to Dr Blanch and I said,"Now, Doctor, is that a fact? I want to know the facts " I said, "I don't want to go down them tomorrow or the next day at the hearing and be apprised of it there, I want to know now, is Scherm a boss?" And Dr. Brandli talked, Mr. Brandli trying to explain to Bennett that his foreman was Barwig and that Scherm took orders from Barwig and passed them on to the other boys, because Barwig thought that Scherm was: a bright man." Vaughn Ward, another employee, testified that he was also called in the office on Friday. March 13, and instructed that Bar« ig, not Scherm, was his boss. ' Respondent puts forward the fact that Nagle, another foreman, takes Barwig's place while the latter is on vacation as tending to establish that Scherm was not a foreman, as otherwise Scherm would have taken Barwig's place, which factor need not be considered in the light of the present finding. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his mouth about something, because I heard Sam Phelps say to Price," and then he related what he had, heard Phelps say. This remark so excited Rogert that he left immediately to report it. Rogert , according to Brunskill , reported the story to Dr. Brandli and Dr. Brandli reported the incident to Dr. Frye, the general manager of the company . Brunskill instituted an investigation into Price's alleged statements . He declined to disclose the names of his inves- tigators at the hearing but testified "I asked them to find out the facts about Julius Price and what he was supposed to have said " Brunskill further testi- fied: Q And what did they say? A. They said, "as far as they could find out, that Julius Price had made the statements." ( Emphasis added.) Only two employees, Roosevelt Smith and Sam Phelps, testified that they actually heard the statements of Price which became the alleged reason for his discharge. Oglesby testified that he came along at about the time that Scherm testified that he had , both overhearing Phelps ask, "Price why would you make a statement like that , and this is the onliest country you know." Q. Did Julius Price say anything in answer to that? A. Yes, sir. Q. What did he say? A. He says-why he says he tried to join the Marines . He tried to join the Marines and he went over about three or four times, and he said he finally went and the third day he went up there the man told him, he don't take any colored in the Navv. Q. In the Navy or the Marines? A. In the Marines. It must be noted here that this incident was reported to respondent by Scherm, the active leader of the Association , and is corroborated solely by the testimony of the two Association members, Smith and Phelps. Julius Price denied having made this statement and testified that he was un- aware of the reason which prompted his discharge , as follows : Q Now, what happened on December 22 with reference to your discharge? A. Well, on December 22, about five minutes to four, Dr. Brandli and Mr. Neave come over and called me off to the side and lie says, "You are discharged." And I asked him, "What for ?" And he said- Q. Who talked? A. Dr. Brandli. Q. All right. A. And he said, "You know what you said two weeks ago?" And I said, "What did I say?" And he said, "You know what you said. You can check out now." Q. "You can check out now?" A. Yes, "And your check is at the office ; your check will be waiting for you at the office." Dr. Brandli did not testify and the above is uncontradicted. Price testified in regard to two conversations that he had with Smith, Phelps, and Oglesby, neither of which occurred , on December 8. The first was in the week preceding the Pearl Harbor disaster; the other, after the Pearl Harbor disaster, on December 14. As to the first, he testified that in November he joined the National Association for the Advancement of Colored People and attended one of the meetings at which mention was made "of the discrimination ( against colored people ) in the departments of the government and that the only way we could have a part was to unite in one big group and protest to the Govern- ment. On Monday morning I explained to them ( Smith, Phelps, and Oglesby) 0 CINCINNATI CHEMICAL WORKS, INC. 471 the benefits of the N. A. C. P. and said . . 'I am one that can witness that ... they discriminated against you in the Marines,' I said, `because in 1930 . . . I tried to enlist in the Marines. I made three or four trips ... the last day, the fellow called me outside and he said, 'Boy, I might as well tell you now, they don't take negroes in the Marines."' As to the second conversation on December 14, Price testified : A. Well, in my regular routine of work from downstairs on the first floor up on the second floor ... I was changing places to work. Just at the top of those stairs was Sam Phelps and Roosevelt Smith working together, stacking up barrels. Just as I got to the top of the steps ... I said (to Smith) "Is it true that Japan sunk 'he,battleships Repulse and the Prince of Wales?" and he says "I don't know. That is what they say." I says, "Yes. If it is so, there had been lies told about Japan's navy." I says, "It has been misrepresented." And, in particular, I don't know where Bill Oglesby comes from, but lie was there, helping out at the same time. He says, "Looks like you were glad of it." The undersigned credits the testimony of Price as to his two conversations with Smith, Phelps, and Oglesby. Brunskill testified that he instituted an investigation to learn the facts about the alleged statement of Price, but when questioned whether he had asked an investigator to talk to Price about it, he replied that he had not. To the question whether he himself had talked to Price, he replied, "As a matter of fact, in a case of that sort, I wouldn't bother . . . because you always get a denial." Coun- sel for the Board then asked : Q. And up to the time you made the decision (to discharge Price) nobody, so far as you know, had talked to Price about it, about the alleged statements ; is that right? A. That is right. It is further apparent from the record that Brunskill's investigation was superficial from the nature of the evidence disclosed therein, all of which was available to him at the time of his investigation and which established Price's patriotism beyond question as was shown by the latter's testimony at the hear- ing: Q. Now, did you buy any Defense Bonds? A. Yes. Q. What caused you to buy any Defense Bonds? A. Well, I always was a supporter of President Roosevelt and his program. Q Yes. A. And he was begging the nation to do all that we could, we must sacrifice, and I can recall, around about Labor Day . . . he begged to the,nation to buy National Defense Bonds and all that they could spare-with all the money that they could spare. So, I thought it was a duty to abide President Roosevelt, as every penny that I could get hold to, as he asked, I would invest it in National Defense Bonds. Q. All right. Now, when did you buy your first bond? A. I think the first one was bought around about September 20, 1941. Q. How much, in amount? A. $37.50. Q. And that would mature at how much? A. $50. Q. All right. When did you buy your next one? A. Around October 1, sometime ; along In there. Q. How much? A. $37.50. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Maturing at how much? A. $50. Q. And when did you buy your next? A. Well, later the President spoke again and he asked that we do again. So I went to the bank and drawed $750, in November. Q. All right. A. And bought $750 worth of National Defense Bonds. Q. And they will mature at how much? A. $1,000.° From the above testimony of Brunskill revealing his failure to question Price before determining to discharge him, and the vague report of the investigators that, "as far as they could find out," Price had made the statements attributed to him, the undersigned concludes that neither Brunskill nor his investigators were free of doubt as to the truthfulness of the story attributing disloyalty to Price. Since it is also apparent from the record that respondent made no sincere effort to determine the substance of its alleged reason for discharging Price, and in the absence of any allegation of inefficiency on the part of Price, it is necessary to examine the union activities of the latter for a possible cause for the discharge. Price joined the Union at the first meeting. He was the only negro who solicited memberships among the yard gang, and the only negro who made a house-to-house canvass for union memberships. He turned in six signed member- ship applications. He was elected sergeant-at-arms of the Union's local, a member of its executive board, and on September 12, its shop steward. He con- tinued as shop steward until his discharge. He was a member of the commit- tee of the Union which prepared and distributed the "Cin-Chem News" in December. He contributed stirring appeals under' his name for membership in the C. I. 0. The paper carried a complimentary mention of C. I. 0. organ- izational stewards in the local union drive, at St. Bernard, including Price. ' Scherm was well aware of Price's activities as is shown by his threat to Price in November, "It would be too bad if you didn't come to work one morning and couldn't get to work." Under all the circumstances, including the dubious character of the respondent's investigation of Price's alleged statements, his satisfactory explanation of what he said, and when he said it, his patriotic attitude in fact, and the respondent's knowledge of Price's outstanding union activities, it is clear, and the undersigned finds that Price was discharged and refused reinstatement not because of an unpatriotic statement but because of his union activity. i IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE ' The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent, described in Section 1 above, have a close, intimate, and substantial relation to trade, traffic and commerce among the several States and with foreign countries, and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. 8 Two bank books were submitted at the hearing establishing that this amount withdrawn and invested in Defense Bonds represented a substantial part of Price's savings dating from 1934, and that the $750 withdrawal was dated' November .1, 1911. Two Federal Reserve Bank of Cleveland receipts were introduced establishing that the latter agency was holding the bonds for the account of Julius Price. CINCINNATI CHEMICAL WORKS, INC. 473 V. THE REMEDY Since it has been found that the respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the respondent discriminatorily discharged Julius Price on the 22nd day of December 1941, and discriminatorily refused to reinstate' him, the undersigned will recommend that the respondent offer to him imme- diate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings a during said period. CONCLUSIONS OF LAW 1. United Mine Workers of America, District 50, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Julius Price, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of-the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting ,commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the undersigned recommends that the respondent, its officers, agents, successors, and rssigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Mine Workers of America, District 50, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees at its plant at St. Bernard, Ohio, by discharging .or refusing to reinstate any of its employees, or in any other manner discrim- inating in regard to their hire and tenure of employment, or any term or condi- tion of employment; (b) In any other manner interfering with, restraining, or coercing its em- ployees in -the exercise of their, rights to self-organization, to form, join or assist labor organizations, to bargain collectively and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act. O BY "net earnings" is meant earnings less expenses, such as for transportation, room and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlawful dis- charge-and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2599, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings. See, Republic Steel Corporation v. N. L. R. B., 311, U. 8 7. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Offer to Julius Price immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges : (b) Make whole Julius Price for _any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages, from December 22,.1941, to the date of the offer of reinstatement, less his net earnings during said period." (c) Post immediately in conspicuous places at its St. Bernard plant at St. Bernard, Ohio, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph, 1 (a) and (b) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) and (b) of these recommendations; and (3) that the respondent's employees are free to become or remain members of the United Mine Workers of America, District 50, affiliated with the Congress of Industrial Organizations, or any other labor organization; and (4) that the respondent will not discriminate against any employee because of such membership or activity ; (d) File with the Regional Director for the Ninth Region, within twenty (20) days from the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondent has complied with the foregoing recommendations. It is further recommended that unless, on or before twenty (20) days from the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended-any party may within thirty (30) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report, or to any other part of the record or proceedings (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing within twenty (20) days after the date of the order transferring the case to the Board. EDWARD G. SMITH, Trial Examiner. Dated May 12, 1942. INTERMEDIATE REPORT Case No. IX-C-1709 Mr. James A. Shaw, for the Board. Mr. James R. Clark and Mr. Burton B. Robinson , of Cincinnati, Ohio, for the respondent. ILO See footnote 9, supra. CINCINNATI CHEMICAL WORKS, INC. Mr. Stanley Dcnltinger, of Akron, Ohio, for the Union. Mr. Richard T. Dickerson, of Cincinnati, Ohio, for the Association. STATEMENT OF THE CASE 475 Upon a charge duly filed on August 15, 1942, by the United Mine Workers of America, District 50, Local 12289, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director of the Ninth Region (Cincinnati, Ohio), issued its complaint dated November 23, 1942, against the Cincinnati Chemical Works, Inc, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent, the Union, the Cleneay Avenue Employees Representative Association, herein called Cleneay Avenue Association, the Murray Road Em- ployees Representative Association, herein called the Murray Road Association, and the Cincinnati Chemical Works, Inc. Employees Representative Association, herein called the Association,' the three last named being labor organizations alleged in the complaint to be dominated by the respondent. With respect to the unfair labor practices, the complaint alleged, in substance, that the respondent ('1) since on or about September 1, 1941, has engaged in a plan and continuous course of conduct which has interfered with, restrained, and coerced its employees in their right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection; and (2) on or about the first part of September 1941, initiated, formed, sponsored, and promoted the Cleneay Avenue Association and thereafter dominated, interfered with and contributed to its support; on or about the middle of October 1941, initiated, formed, sponsored, and promoted the Murray Road Association, and thereafter dominated, interfered with and contributed to its support; and on or about October 27, 1941, initiated, formed, sponsored and promoted the Association and since that date dominated, interfered with, and contributed to its support. On January 14, 1943, the respondent filed its answer in which it admitted the allegations of the complaint as to the nature of its business, but denied the al- leged unfair labor practices. Pursuant to notice, a hearing was held from January 14 to January 22, 1943, at Cincinnati, Ohio, before Howard Myers, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. At the opening of the hearing, the Association moved to intervene in this proceeding, which motion was granted without objection. In its answer the Association denied that it was dominated by, or that it had received any support from, the respondent. Respondent's coun- sel then filed a motion in the nature of a request for a Bill of Particulars. The motion was granted in part and denied in part. The Board, the respondent, the Union, and the Association were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case, coun- sel for the respondent and counsel for the Association made several motions to 'As hereinafter found, the Cleneay Avenue Association and the Murray Road Asso- ciation merged on or about October 23, 1941 . The new organization is known as the Cin- cinnati Chemical Works Inc. Employees Representative Association. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 dismiss the complaint for lack of proof. The motions were denied At the conclusion of the hearing, counsel for the Board moved to conform the pleadings to the proof. The motion was granted without objection Counsel for the respondent and counsel for the Association then renewed their respective motions to dismiss the complaint for lack of proof. Ruling thereon was reserved. The motions are hereby denied. At the close of the hearing, the parties were af- forded an opportunity to argue orally before the undersigned. Counsel for the Board, for the respondent, and for the Association participated in such oral argument. The parties were then advised that they might file briefs with the undersigned on or before January 27, 1943.' A brief has been received from the Association's counsel. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT' Cincinnati Chemical Works, Inc, is a Delaware corporation and operates two plants in Ohio, one at Norwood and the other at St. Bernard. At those plants, which are about 3 miles from each other, the respondent is engaged in the manu- facture, sale, and distribution of dyes, intermediate textile aids, pharmacological and tanning agents. The respondent's annual sales amount to upwards of one million dollars, over 50 percent of which are delivered to points located in States other than Ohio. More than 50 percent of the respondent's annual purchases of raw materials are received at its two plants from points outside the State of Ohio. The respondent In its answer admitted, and at the hearing conceded, that it is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATIONS INVOLVED United Mine Workers of America, District 50, Local 12289, Cleneay Avenue Employees Representative Association, Murray Road Employees Representa- tive Association, and the Cincinnati Chemical Works Inc. Employees Repre- sentative Association are unaffiliated labor organizations, admitting to member- ship employees of the respondent. III. THE UNFAIR LABOR PRACTICES Interference, restraint, and coercion; the alleged domination and support of, and interference with the three Associations During August 1941, the Union began its organizational drive among the employees of the St. Bernard Plant. Early in September a group of em- ployees of the Norwood plant, none of whom was identified with the manage- ment, discussed among themselves on several occasions the advisability of forming an independent union in the Norwood plant in order to forestall any attempt by the Union to organize that plant. As a.result of these discussions, 2 Upon the applications of counsel for respondent and counsel for the Association the time to file briefs was extended to February 10, 1943. 8 The findings in this section are based upon a stipulation of the parties entered into at the hearing. The Union at no time attempted to organize the Norwood plant. Its membership has always been confined to employees of the St. Bernard plant. Another local of the United Mine Workers of America, District 50, admits to membership employees of the Norwood plant. CINCINNATI CHEMICAL WORKS, INC. 477 the group consulted and retained an attorney and shortly thereafter the group, assisted by others, circulated petitions or agreements among the employees for the signatures of those favoring an independent organization. On September 19, an open meeting was held in a public hall in Norwood. This meeting was attended by 218 of the then approximate 350 employees of the Norwood plant. There, the aforesaid attorney addressed the employees and under his guidance, after full discussion by those present, the formal mat- ters attendant upon organization were adopted and a committee was appointed to prepare a constitution and a set of bylaws to be submitted to the member- ship at the next meeting. Thus, the Cleneay Avenue Association came into being On September 26, the membership met and adopted the constitution and the bylaws prepared by the committee appointed at the prevous meeting, and then elected permanent officers. On October 2, the Cleneay Avenue Association again met and the members appointed a committee to prepare a contract with respect to wages, hours, and working conditions to be submitted to the respondent. On October 8, the Cleneay Avenue Association wrote the respondent a letter stating that that organization represented a substantial majority of the employees of Norwood and requesting an appointment with the respondent's officials for October 10, to discuss hours, wages, and working conditions for the Norwood employees. At about the same time, the Union notified the respondent that it represented the majority of the St. Bernard employees and requested a bargaining conference for those employees. The respondent, upon receipt of these requests, imme- diately advised the two organizations that its attorney was out of town and upon his return a date would be set for the requested conferences.' Early in October 1941, a group of employees of the St Bernard plant began a counter movement to the organizing drive of the Union at that plant. Accord- ing to the record, the most active member and the guiding spirit of this group was Richard Scherm,' a supervisor in the raw materials department of that 6 Subsequently the respondent notified the Union and the Association that it would not negotiate a contract or discuss grievances until the question of representation was resolved by the Board. Also referred to in the record as Sherman, Robert Scherm and Richard Schurm. The respondent and the Association dispute the supervisory status of Scherm The record dis- closes that Scherm, two other white employees, and about 20 or 30 negro employees work in the raw material department, also referred to in the record as the yard gang, under the supervision of Foreman Barwig. The main function of this department is to deliver, as needed, the raw materials to the several production departments in the plant According to the testimony of Barwig, Scherm assists him in running this department ; keeps inventory of the raw materials used in the plant; and sees that the icritten orders for raw materials received from the production departments are properly filled and delivered. A number of colored employees in the raw material department testified, without contradiction, and the undersigned finds, that Scherm assigns them work and they regard Scherm, as well as Barwig, as their boss and that no other employee of that department gives orders to the men. Former employee Norman testified, without contradiction, and the undersigned finds, that Barwig told him Scherm was his (Norman's) boss. Several other employees in this department testified, without contradiction, and the undersigned finds, that when an employee reports for work late, Scherm makes a notation of that fact in the time book and "docks" the employee for being late. On the other hand, Barwig, Scherm, and As- sistant Manager Brunskill testified that Scherm was not a supervisory employee ; that he was paid on an hourly basis, and that supervisors are paid on a weekly basis ; that he does not attend supervisors' meetings with the officials of the respondent. Scherm, however, testified that he is the clerk of the yard gang and takes orders from Barwig which be transmits to the other men in the department. Scherm, since at least August 1941, has been receiving 11 cents more per hour than the next highest paid man in that department. Moreover, Scherm is the only person in that department other than Barwig, who is not continuously engaged in manual work. From the foregoing it is clear, and the undersigned finds, that the duties of Scherm, during all the times material herein, were supervisory in 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I plant. After several meetings at the homes of two of the employees, which Scherm attended, the group consulted and retained the attorney representing the Cleneay Avenue Association. Under the attorney's guidance, the Murray Road Association was formed and held its first meeting at a public hall in St. Bernard on October 17. This meeting was attended by 70 of the approximate 250 persons then employed at the St. Bernard plant. There, after talks by its attorney, by the president and one of the members of the Cleneay Avenue Association, the formal matters pertaining to the formation of a labor organiza- tion were adopted and temporary officers were elected. On October 23, the next meeting of the Murray Road Association was held, likewise at a public hall in St. Bernard. This meeting was attended by about 200 employees. Members of the Union, some of its officers and international representatives were present by invitation. Prior to proceeding with the regular business of the meeting, a lengthy discussion was had between the Union's adherents and those in favor of an independent union; the Union's representatives proselyting for the Union, while the proponents of the Murray Road Association did likewise in its behalf. After several hours of discussion, the Union's adherents withdrew. The mem- bership then proceeded to adopt the constitution and bylaws and to elect per- manent officers. Shortly prior to the conclusion of the meeting, a delegation from the Cleneay Avenue Association came into the meeting and announced that the latter organization, at a meeting held that evening, had amended its constitu- tion to admit into membership employees of the St Bernard plant. After discus- sion, the members of the Murray Road Association adopted a resolution merging their organization with the Cleneay Avenue Association. A similar merger resolution was adopted that evening by the Cleneay Avenue Association. The new organization then became known as the Cincinnati Chemical Works Inc. Employees Representative Association and the officers of the Cleneay Avenue Association and the Murray Road Association became its officers. According to the uncontradicted testimony of Carl Norman, John Busch, and others, which the undersigned finds to be substantially in accord with the facts, Scherm, whose duties took him throughout the plant, asked them on many occa- sions during working hours to resign from the Union and become members of the Association because the Union would avail them nothing while membership in the Association would be advantageous to them. According to the uncon- tradicted testimony of Vaughan Ward, which the undersigned credits, Scherm gave Ward work with overtime pay when Ward agreed to pay his back Associa- tion dues to Scherm. Scherm admitted obtaining 25 members for the Association, and that he obtained most of them on company property and some on company time. He likewise admitted that he induced several employees to withdraw from the Union and had them sign written resignations. Norman also testified without contradiction, and the undersigned finds, that several weeks after he joined the Union he wore his union button in a conspicuous place upon his per- son in the plant and that Scherm came up to where he was working and told him to take off the button if he valued his job. Norman further 'testified that sometime in November 1941, Scherm told him "that the boys who belong to the Association would have jobs and get more bonus . . . than the ones that belonged to the CIO"; that if Norman wanted to retain his job he should join the Associa- tion ; and that he joined the Association in order to obtain "the Christmas bonus and things like that." Scherm denied making those statements. The under- signed rejects his denial. nature, within the meaning of the Act . Even counsel for the respondent indirectly admitted that Scherm was at least a leadman . Under the circumstances the respondent is chargeable with,, and is responsible for, his acts and statements . See International Association of Machinists v. N. L. R. B., 311 U. S. 72. CINCINNATI CHEMICAL WORKS, INC. 479 Clifford Bennett, a former employee, testified without contradiction, and the undersigned finds, that in September 1941, shortly after he had joined the Union and,on the first day he wore his union button, he heard Foreman Barwig re- mark, in the presence of several employees, "men wearing those [Union] buttons wasn't, going to get such a good break ; that the ones that didn't have no buttons would get all the gravy." Bennett also testified , that the undersigned finds, that Barwig's remark caused him to remove his union button, withdraw from the Union, and, at Scherm's solicitation, join the Association? Allen Jenkins testified without contradiction, and the undersigned finds, that in the latter part of May or early in June 1942, James Crane, an assistant chemist,',came over to where he was working and that the following ensued : He [Crane] said, "I heard there was a changeover." He said, "I have been on a vacation for a week and I want to know all about it. I heard that some of you fellows swung over to the other union." He said, "You know I am your boss, your supervisor. You fellows have any grievance with the com- pany or mad at them?" I said, "No, we are not mad." He said, "What is the swingover foro?" I said, "We got tried of the other union [the Associa- tion]. They have been dickering about five or six months and they got $6.00 and I got fed up with it. I am going to join one that will do me some good." He said, "This is confidential." He said, "I am your superior, and anything that goes wrong here, you are dissatisfied with your work, we have to make some kind of a report back to Mr. Brunskill .[the respondent's assistant man- ager]." Q. What else was said, if anything? A. He went on talking about it and he said, "You know if you would join that organization [the Union]," he said, "I could make it hard on you around here. There could be middle of the day layoffs and they cut out your holi- day pay and bonus." I said, "Yes, you could do that but they have the Wag- ner Act behind them and they are not afraid about it, at least I am not" and then he talked different. I said, "We are not mad at the company. We were promised a whole lot of things, 200 on the hour, vacation with pay." I said "You have children and I have too. 'If I promise them ice cream and they don't get it, they are mad. That's what happens to us and that's why I dropped out. We want what we were promised." John Marshall testified without contradiction, and the undersigned finds, that he had a conversation with Crane sometime in May or June 1942, wherein Crane asked him if he joined the Union because "He had a grudge against" the re- spondent ; that he replied "No"; and that Crane then stated that he was sur- prised to hear that Marshall had any connection with the Union. 7In an effort to impeach the testimony of Bennett , the respondent introduced in evi- dence a statement given the respondent by Bennett The record shows that the respondent's counsel interrogated Bennett in the presence of the respondent's official and then dictated the statement which Bennett signed at the respondent's request. This statement stated, in part that Bennett had never been told by "Schemr or anybody else that if he wanted to work at the Chemical Company he had better not wear any button," that he had nei er heard anyone in the plant make a statement to the above effect, and that Scherm had not advised him with respect to joining or not joining the C. I. 0. or any other union. The undeisigned finds that this signed statement does not discredit Bennett's testimony . Although admit- ting that he had read the statement before signing it, Bennett testified that he knew that the statement did not accurately set forth his answers to the questions propounded to him by the respondent but that he was "afraid to not sign the paper ." The undersigned credits Bennett's reasons for signing the statement. 9Each production department is in charge of a chemist. Next in charge is the assistant chemist. Chemists and ,their assistants are superior in rank to foremen. 0 I 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harmie Hammond, a former employee of the respondent, testified that he joined the Union in October or November 1941, and that shortly thereafter Hugh Campbell, the chemist in charge of his department, said to him "that the relations were such between the personnel, the management of that Company and the employees that no outside organization need try to get in there . . . that some of its employees had worked there for twenty-five years, and if things weren't right he made them all right ... and it was dangerous for me or any- one else to try to disrupt that organization by starting an outside movement in there. In fact, some of them thought enough of the Company that they might not looking, or behind my back accidentally drop or push over acid on me." Campbell denied making the above quoted statement or any similar statement. Campbell's testimony was taken at a hospital where he was lying seriously ill due to injuries received from a fall. Despite the fact that he did not answer the questions propounded to him with directness, he impressed the undersigned as a forthright and honest witness. Hammond, on the other hand, did not so impress the undersigned.° The undersigned finds that Campbell did not make the statement attributed to him by Hammond. Herbert Frazier, a former employee, testified that he was first employed by the respondent in February 1942, and that just prior to being put to work he had the following conversation with Foreman Evans: He [Evans] said, "I understood in your letter of application that you didn't belong to no union." I said, "Well I don't say I exactly do not, I am laid off for the duration of the war as far as that is concerned." He said "Did you belong to -the CIO?" I said, "Yes, I belonged to the CIO when I worked at General Motors." He said "Well, we don't want the CIO here." I said "I didn't come over here to organize no CIO." He said, "Well, the boys has got a union of their own here." I said, "Well, whatever way the boys feel I guess I ought to go with them if I work here." Evans denied making any statement to Frazier to the effect that he "didn't want any CIO union men or a CIO union in the Cincinnati Chemical Works." Evans testified that he knew that Frazier formerly was a member of the CIO because he was told by employee Carl Hewitt, one of the persons to whom Frazier referred the respondent for reference, that Frazier had formerly worked at the Chevrolet plant in Norwood and he knew that that plant had a closed shop contract with the CIO. Evans' testimony regarding Frazier and the other matters about which he was questioned impressed the undersigned as being in accordance with the facts. The undersigned finds that Evans 'did not make the statements attributed to him by Frazier. This finding is buttressed by the fact that at the time of the alleged statement the Union had been carrying on its organizational activities for upwards of six months and there is no evidence of prior anti-union statement or activities by Evans. Several witnesses 10 called by the Board testified, and the undersigned finds, that James Miller, a member of the group which advocated the formation of the Cleneay Avenue Association, came into their department during working hours on a great many occasions between September 1941 and April or May 1942, and each time asked them to join that organization that on several occa- sions Miller made his requests in the presence of Foreman Lorenze; that Lorenze did not reprimand or otherwise speak to Miller until Miller's activities inter- fered with production ; and that on two occasions in either April or May 1942, Lorenze ordered Miller to leave the department because he was interfering. ° Hammond was discharged by the respondent and appeared biased against Its case. 10 Herbert Frazier, Allen Jenkins, and John Marshall. CINCINNATI CHEMICAL WORKS,, INC. 481 with the men's work. Other witnesses testified that Association posters and announcements of forthcoming meetings of the Association were permitted to remain posted for at least several days in the men's locker room n On the other hand, the record shows that there were Union signs "all over the [Norwood] plant." These placards were removed , from time to time, by the respondent. On one occasion, however, Foreman Parry, in the presence of several employees, fastened an Association poster on the wall of the locker room when the poster had become partially detached therefro m . - Numerous witnesses testified to other activities carried on during working hours on behalf of the Association and the Union. In fact, the record clearly shows that the organizational activities of the Association, its predecessors , and the Union occurred in the large part during working hours , by or in the presence of supervisors, and that the respondent took no steps to check these activities . Thus, those in favor of the Union and those in favor of the Association engaged in union activities on company time and property with impunity . Roy Loomis testified as a witness for the Board and admitted, under cross examination, that he was a supervisor " in the power house at the St. Bernard plant ; that he joined the Union at its September 3, 1941 meeting and at that meeting lie signed up one of the men whose work he directs ; that other men whose work he directs also attended that meeting and there joined the Union ; that all the power house employees , except the chief engineer, are members of the Union ; and that at the time of the hearing he was financial secretary of the Union and collects the monthly Union's dues of the power employees and others on company property . Moreover, Stationary Engineer Schmidt " signed tip Carl Norman as a member of the Union on'or about Sep- tember 4, 1941, in the power house. There is no credible evidence in the record to support the allegations of the complaint that the respondent initiated , sponsored , or gave financial support" to the Cleneay Avenue Association, to the Murray Road Association, or to the Association. The fact that the respondent permitted solicitation of member ship and the collection of dues by the Association and its predecessors , on company time and property, and permitted the Association to post notices on company property would of course , be strong proof of domination and interference with those organizations , if the Union had been denied similar privileges However, 31 Several foremen use this locker room as their dressing room. 11 Loomis is a licensed stationary engineer and has been employed as such by the respond- ent since February 1934 He testified without contradiction , and the undersigned finds, that there are four such engineers employed at St. Bernard, each working a separate shift ; that in the absence of the chief engineer, who only works on the day shift , the stationary engineer is in charge of the power house and that the stationary engineer gives orders to the licensed firemen on his shift and to the other power house employees is Schmidt was formerly vice president of the Union. At the time of the hearing he was one of its trustees. 14 It appears that the respondent paid 2 members of the Association their regular salaries for the week ending August 1, 1942, despite the fact that these 2 employees attended a hearing on July 31 , 1942 , before the Board in a representation case involving the respond- ent's employees while the respondent did not pay members of the Union for the time spent by them at the hearing The credible evidence shows that there were other members of the Association who attended that hearing , and were not paid by the respondent for the time spent away from the plant . The respondent claimed at the hearing that it was not cogni- 7ant of the fact that these 2 employees were paid their full salary for July 31 , although these employees did not work a full day until the commencement of the hearing in the instant proceeding. The evidence is clear that the overpayment was made through the errors of Foreman Evans and the pay -roll clerk, the latter being ill at the time the errors were made The undersigned finds that the two employees were paid their regular salary for July 31 , 1942, through inadvertence and for no other reason. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since members and adherents of the Union were treated equally and afforded full opportunities in this regard, it cannot be said that sponsorship and support of the Association, or of its predecessors, are shown, within the meaning of the Act. Although it has been found that Crane, Parry, and Barwig, supervisors of higher authority than Scherm and the stationary engineers, had made certain statements and engaged in certain actions detrimental to the Union, the undersigned finds that those statements and activities by themselves afford an insufficient basis upon which to conclude that the respondent dominated, interfered with, and ^ con- tributed support to the Association." Although the character and extent of these statements and activities do not furnish a sufficient basis for finding that the respondent had engaged in unfair labor practices within the meaning of Section 8 (2) of the Act, the undersigned is convinced and finds that the activities of the respondent's supervisory employees, as set forth above, constitute prohibited interference within the meaning of Section 8 (1) of the Act.10 The undersigned shall accordingly recommend that the allegations of the complaint that the Cleneay Avenue Association, the Murray Road Association, and the Association were initiated, formed, sponsored, promoted, supported, dominated, and interfered with by the respondent be dismissed. The undersigned finds, however, that the respondent, by the statements and activities of its supervisory employees,- as found above, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The undersigned finds that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in 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 burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the resopndent has not dominated or interfered with the formation or administration of the Cleneay Avenue Association, the Murray "it will be recalled that these statements and activities, except those of Bare ig, were made in May or June 1942, about 9 or 10 months after the Union started its organizational drive Moreover, on September 16, 1941, and on many occasions thereafter, the super- visors were warned by the respondent's officials not to interfere with the organizational activities of the employees. On or about September 17, 1941, the respondent posted notices in conspicuous places in both plants reading as follows : It has just come to the attention of the management that statements have been made to our employees that they will lose their jobs with this company or will be discriminated against if they do not join a union. We wish it to be clearly understood that the policy of this company is the same as it has always been, not to discrimi- nate against any employee because of his union or non-union affiliation. These notices were occasionally torn down but the respondent upon discovering this fact, Immediately put up other notices reading as above quoted Furthermore, there is no cred- ible evidence in the record that the respondent's supervisors disobeyed their aforesaid Instructions, except as found above. There is some evidence in the record that Robert Hall assisted in obtaining members tor the Association. The Board contended at the hearing that Hall is a supervisor. The record does not contain sufficient evidence to sustain the Board's position in this respect The undersigned finds that Hall's activities in'aiding the Association are not attributable to the respondent. 16 In making this finding the undersigned excluded from consideration the activities of Scherm and the stationary engineers. CINCINNATI CHEMICAL WORKS, IN'C. 483 Road Association, or the Association, or contributed to their support, it will be recommended that the complaint in this respect be dismissed. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw 1. United Mine Workers of America, District 50, Local 12298, the Cleneay Avenue Employees Rep_eseritative Association, the Murray Road Employees Repre- sentative Association, the Cincinnati Chemical Works Inc. Employees Representa- tive Association, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3 The respondent did not initiate, sponsor, form, promote, dominate, interfere with, or support the Cleneay Avenue Employees Representative Association, the Murray Road Employees Representative Association, or the Cincinnati Chemical Works Inc Employees Representative Association, within the meaning of Section 8 (2) of the Act. RECOMMENDATION'S Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, Cincinnati Chemical Works, Inc., its officers, agents, successors and assigns shall : 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing its employees in the exercise of the rights of self-organization, to form, join or assist labor organi- zations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act : (a) Post immediately in conspicuous places in its St. Bernard, Ohio, and Norwood, Ohio, plants and maintain for a period of at least sixty (60) consecu- tive days from the date of posting, notices to its employees stating that the re- spondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a) of these recommendations; (b) Notify the Regional Director for the Ninth Region in writing within ten (10) days from the date of receipt of this Intermediate Report what steps the respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further recommended that the complaint be dismissed insofar as it alleges that the respondent interfered with and dominated the formation and adminis- tration of Cleneay Avenue Employees Representative Association, the Murray Road Employees Representative Association, or the Cincinnati Chemical Works Inc. Employees Representative Association and had contributed to their support. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 28, 540612-44-vol. 51-32 484 D,EC[SI'ONS OF NATIONAL LABOR RELATIONS BOARD 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Wash- ington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies, upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days after the date of the entry of the order transferring the case to the Board. HOWARD MYERS, Trial Examiner. Dated March 23, 1943.