Celanese Corp. of America

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 346, AFL-CIO, or any other labor organization, by discriminatorily laying off any of our employees, or discrimmatonly reducing the seniority of our em- ployees, or in any like or related manner discriminating in regard to their hire or tenure of employment or any terms or conditions of their employment WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization, to form or join labor organizations, to assist the above-named or any other labor organization, to bargain collectively through representatives of'their own choosing , or to en- gage in concerted activities for the purpose of collecitve bargaining or other mutual aid of protection , or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act WE WILL rescind our discriminatory seniority policy which we have main- tamed since July 5, 1957, and will restore all strikers who sought reinstatement to the seniority they would have enjoyed absent such discriminatory policy WE WILL offer to the following named employees immediate and full rein- statement, on the basis of their restored seniority, to their former or sub- stantially equivalent positions without prejudice to their seniority or other rights and privileges Hazel E Ramey Grace Walker Sarah Colborn Edna Derwacter Helen Howard Mae McHenry Ada Robinett Grace Hardin Delcie M Lewis Della Churchill Bessie Croston WE WILL make whole the above -named and all other discriminatees whose seasonal hiring was delayed, or whose seasonal layoffs were accelerated, or who suffered loss of employment because of our discriminatory seniority policy, for any loss of wages incurred as a result of the application of this seniority policy BALLAS EGG PRODUCTS, INC, Employer- Dated ------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material Celanese Corporation of America and Textile Workers Union of America, AFL-CIO. Case No 9-CA-1525 November 25,1959 DECISION AND ORDER On June 16, 1959, Trial Examiner Louis Libbin issued his Inter- mediate Report in this proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean 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 entire record in these cases, including the Intermediate Report, the excep- 125 NLRB No 43 CELANESE CORPORATION OF AMERICA 353 tions and briefs, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Celanese Cor- poration of America, Gallipolis Ferry, West Virginia, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Textile Workers Union of America, AFL-CIO, as the exclusive representative of all the Re- spondent's employees in the appropriate unit hereinafter set forth. (b) Interfering in any manner with the efforts of Textile Workers Union of America, AFL-CIO, to bargain collectively on behalf of the employees in the said appropriate unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Textile Workers Union of America, AFL-CIO, as the exclusive representative of the em- ployees in the bargaining unit described herein, with respect to wages, rates of pay, hours of employment, or other terms or conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is : All produc- tion and maintenance employees, including utility employees, em- ployed at the Gallipolis Ferry, West Virginia, plant, excluding all office clerical employees, plant clerical employees, janitors, and all guards, professional employees, and supervisors as defined in the Act. (b) Post at its plant in Gallipolis Ferry, West Virginia, copies of the notice attached to the Intermediate Report marked "Appendix A." 1 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after having been duly signed by an authorized representative of the Respondent, be posted by the Re- spondent immediately upon the receipt thereof and maintained by it for 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. (c) Notify the Regional Director for the Ninth Region in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. i This notice shall be amended by substituting for the words " The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Textile Workers Union of America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued his complaint, dated October 9, 1958, against Celanese Corporation of America, herein called the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that: (1) At all material times the Union has been certified by the Board as the exclusive collective-bargaining representative of Respondent's employees in an appropriate production and maintenance unit at its plant in Gallipolis Ferry, West Virginia; (2) on or about August 8, 1958, the Union requested the Respondent to bargain with it concerning rates of pay, wages, hours of employment, and other terms and conditions of employment of the employees in said unit; (3) since on or about August 18, 1958, Respondent has refused to bargain with the Union as such certified exclusive collective-bargaining representative of the employees in said unit; and (4) by the foregoing conduct Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. In its duly filed answer, Respondent admits the jurisdictional allegations, that the Union is a labor organization and that it refused to bargain upon the Union's request; it denies that the Union has ever been the exclusive collective-bargaining representa- tive of the employees in the appropriate unit, or that Respondent was under any obligation to bargain with the Union, or that Respondent engaged in any conduct violative of the Act. As an affirmative defense, the answer avers that: (1) The election on which the certification was based was invalid because the conduct of the Union prevented the election from reflecting the employees' real choice; (2) said conduct was duly brought to the Board's attention in objections which were overruled by the Board without a hearing and the Union certified; and (3) under these circum- stances, the certification of the Union is defective and void. Thereafter, the General Counsel filed a motion for judgment on the pleadings. On December 2, 1958, Trial Examiner Albert P. Wheatley granted the motion, find- ing that Respondent's refusal to bargain with the Union violated the Act and recom- mending the usual bargaining order based on such findings. On January 9, 1959, the Respondent filed exceptions to the Trial Examiner's judgment on the pleadings. Thereafter, on March 25, 1959, the Board issued an order, in which it vacated the judgment on the pleadings and the recommendations of Trial Examiner Wheatley, ordered that a hearing be held before a Trial Examiner "for the purpose of taking testimony with respect to the issues presented by the pleadings, including Respond- ent's objection to conduct affecting the results of the election which the Regional Director overruled in the representation proceeding, to which ruling Respondent had excepted," and further ordered that "the Trial Examiner shall prepare and serve upon the parties an Intermediate Report containing findings of fact, conclusions of law and recommendations based upon the evidence received pursuant to the provisions of this order." Pursuant to due notice, a hearing was held before me on May 13-14, 1959, at Cincinnati, Ohio. All parties were represented at the hearing and were afforded full opportunity to be heard, to examine and cross examine witnesses, to introduce rele- vant evidence, to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. Therefore, the Respondent filed a brief, which I have fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, owns and operates a number of plants in various States, including a plant located at Gallipolis Ferry, West Virginia, the only plant involved in this proceeding, where it is engaged in the manufacture of organic chemicals. During the 12-month period preceding the issuance of the com- plaint, which is a representative period, Respondent has shipped from its plant at Gallipolis Ferry, West Virginia, directly to points located outside the State of West Virginia, goods of a value in excess of $1,000,000. Upon the above admitted facts, I find, as Respondent concedes in its answer, that Respondent is engaged in commerce within the meaning of the Act. CELANESE CORPORATION OF AMERICA if. THE LABOR ORGANIZATION INVOLVED 355 The complaint alleges, the answer admits, and I find that Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issues The employees at the plant involved have never been represented by a labor organization for collective-bargaining purposes. On January 31, 1958, the Union filed a petition for an election, which was held on March 12, 1958. During the period from February 14 through March 8, 1958, Respondent mailed to each em- ployee in the agreed unit a series of letters, signed by the plant manager, in which Respondent pointed out the number and nature of benefits available to the employees under Respondent's existing employment policy and urged the employees to vote against the Union in the pending election. In response to these letters, the Union sent to each employee two letters dated February 24 and March 10, 1958. The only issue in this case is whether the validity of the election, which resulted in the Board's certification of the Union as exclusive bargaining representative of the employees in an agreed appropriate unit, was affected by the Union's letter of March 10, 1958, because of the following statements therein: He [the manager of the plant involved] says that all of the fine fringe benefits show the company's interest in your concern. This could be something less than the truth, for the fact is that Celanese fringes, as well as other plant conditions, were won through collective bargaining, and in many instances over the initial opposition of the Company. Mr. Pearson [the plant manager] does not know much about this, since many of the gains won by the Union for Celanese workers date back to a time when he was just a youngster. This was the identical basis for the Respondent's objection to the election, which the Regional Director overruled and to which ruling Respondent excepted. The burden of sustaining this objection to the election rests upon the Respondent.1 B. Contentions and analysis The Respondent contends in its brief that the above statements invalidated the election results because they were "false, misleading and erroneous" and there was insufficient time before the election for the Respondent to correct the misrepresenta- tions. Viewed in the light of Respondent's prior preelection letters, as it must be, the Union's letter claims only that some, not all, unspecified benefits referred to in Respondent's preelection letters were obtained by collective bargaining. Thus, some of the benefits to which Respondent's letters referred were of such a nature that the employees could not reasonably have believed that the Union was claiming credit for them 2 Nor would the employees be likely to infer from the Union's letter that the Union was claiming credit for obtaining benefits which neither the Union's letter nor the Respondent's letter had ever specifically described. Considering the Union's letter in the light of this reasonable interpretation, the Respondent has failed to prove that the Union's claim was false and erroneous. For the record shows, through contracts introduced in evidence by Respondent for its other plants, that many types of fringe benefits mentioned in Respondent's pre- election letters, such as vacation benefits, holidays, holiday pay when worked, appli- cation of seniority in promotions, shift differentials, pay for jury duty and funeral leave, and providing protective and safety devices, were negotiated by Respondent with this and other labor organizations. Thus, Edward R. Allan, who was the Respondent's vice president in charge of industrial relations when these contracts were negotiated, admitted that the fringe benefits contained in these contracts, which the parties stipulated were in effect on the date of the election, "were all made as a result of collective bargaining" and "were the product of our negotia- tions." And indeed, the level of some of the fringe benefits so negotiated in these contracts are as high, or substantially as high, as those mentioned in Respondent's 1 N.L.R.B. v. Dallas City Packing Company, 251 F. 2d 663 (C.A. 5). 2 For example, a disciplinary procedure handled entirely by management, or improve- ments in the physical facilities of the plant. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preelection letters? In addition, Respondent's contracts with the Union for its other plants contain additional fringe benefits not mentioned in the Respondent's pre- election letters, such as, for example , reporting pay and technological displacement allowances.4 Moreover, even if Respondent's interpretations of the Union 's letter was accepted to the effect that the Union was claiming that all the fringe benefits were won through collective bargaining, the Union's claim at most amounted to a half truth. It is the Board's policy not to police ordinary campaign representations for their truth or falsehood but to leave to the good sense of the employees the determination of which are true or false.5 Employees are aware that in a hotly contested election, as in political elections , parties frequently make pufing allegations during the heat of the preelection campaign . This is particularly true in the instant case where the employees involved were admittedly "above average in intelligence , ability and potential . [and] were emotionally mature and capable of thinking and acting as responsible adults." 6 Moreover, the Respondent put the employees on their guard when it admonished them in one of its preelection letters "not to let rumors, misinformation and unfounded promises sway your judgment nor be misled by propaganda calculated to make you fearful." Thus, the Board has repeatedly refused to set aside elections on the ground that some campaign statements were not entirely true,7 or on the basis of campaign misrepresentations comparable to that ascribed to the Union.8 It is true that the Board has set aside elections because of material misrepresenta- tions of fact, but only where both of the following factors were present: 9 (1) the em- ployees would tend to give particular weight to misrepresentations because they came from a party who had special knowledge of, or was in an authoritative position to know, the true facts, and (2) no other party had sufficient opportunity to correct the misrepresentations before the election . Neither factor is present in the instant case, even assuming that the Union's letter contained material misrepresentations of fact. In view of the caliber of employees involved, it is not likely that they would have a For example, provisions for eight paid holidays, and pay at 2% times the regular rate when work is performed on said holidays, appear in Respondent's current contracts with the Union for the Belvedere and Newark, New Jersey, plants (Respondent's Exhibits Nos. 6 and 9), and in many of its current contracts with other unions (Respondent's Exhibits Nos. 14, 15, 16, and 17) ; provisions for 3 days' funeral leave with pay appear in Respondent's current contract with the Union for its Newark, New Jersey, plant (Respondent's Exhibit No. 9), and in its current contract with the Operating Engineers for the Newark plant (Respondent's Exhibit No. 16) ; provisions for awarding promotions on the basis of seniority appear in Respondent's contracts of 1946 and 1947 with the Oil Workers Union, including the requirement that vacancies be posted (Respondent's Exhibits Nos. 19 and 20), and in its current contracts with the Union for its Bridgewater, Virginia, and Rock Hill, South Carolina, plants, without a posting provision (Respond- ent's Exhibits Nos. 7 and 8) ; and provisions for paid vacations of 1 week after 1 year of service appear in Respondent's current contracts with the Union for six of its other plants, and provisions for paid vacations of 3 weeks after 15 years of service appear in its current contracts with the Union for two of those plants ( Respondent's Exhibits Nos. 5A-10). 4 Respondent's Exhibits Nos. 5A-10. 8 Herder's Incorporated, 114 NLRB 751, 753. 9 See Respondent's preelection letters, dated February 18 and 21, 1958. 7 Horder's Incorporated, supra ; see also Avon Products, Inc., 116 NLRB 1729, 1731. 8 See, e.g., Barber Colman Company, 116 NLRB 24, 26-27 (employer's untrue allega- tions that union had engaged in certain strikes) ; The De Vilbiss Company, 115 NLRB'. 1164, 1166-1167 (employer's misrepresentation of the amount of the union's dues, the contracts and wages it had obtained at other plants, and its views on strikes) ; Allis- Chalmers Manufacturing Company, 117 NLRB 744, 746-749 ( union's alleged misrepre- sentation that it had obtained certain benefits for employees outside the voting group which were thereafter accorded employees in the voting group ) ; Verson Manufacturing Co., 114 NLRB 1297 (employer's misrepresentation of the contents of a contract between the union and another employer ) ; Comfort Slipper Corporation, 112 NLRB 183, 184-185 (union's alleged misrepresentation of the number of pledge cards it had obtained and the size of the employer's profits) ; Audubon Cabinet Company, Inc., et al., 119 NLRB 349 (union's alleged misrepresentation of the hours, wages, and working conditions at the employers' other plants). 0 See Kawneer Company, 119 NLRB 1460. CELANESE CORPORATION OF AMERICA 357 attached special weight to the Union's version of the facts, as against Respondent's version, since they necessarily knew that Respondent was a party to the negotiations. and the contracts in question. Although the Respondent did not have sufficient time before the election to reply to the Union's letter,1° the fact remains that its version of the facts was adequately presented to the employees before the election. The Respondent's preelection letters had been prepared with the assistance and approval of Respondent's officials in the New York office who were familiar with Respondent's collective-bargaining history. Implicit in these letters is the theme that the employee benefits recited therein were voluntarily granted by Respondent alone, without the benefit of collective bargaining. Employees of above average intelligence, as these admittedly were, could not help but understand this to be Respondent's claim. That the Respondent's denial preceded the Union's claim is immaterial; for, the Respond- ent was not entitled to the last word as a matter of right.ll Moreover, the Union's letter itself points out Respondent's claim that Respondent alone should be given credit for said benefits. Upon the basis of the entire record considered as a whole, I find that the record does not support the Respondent's contention that the Union's letter of March 10 affected the validity of the election which resulted in the Union's certification by the Board. C. Concluding findings I find, in accordance with the stipulation of the parties in the representation pro- ceeding, that all production and maintenance employees, including utility employees,. employed by Respondent at its Gallipolis Ferry, West Virginia, plant, excluding all office clerical employees, plant clerical employees, janitors, and all guards, pro- fessional employees, and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. In the election conducted under the direction and supervision of the Board's Regional Director on March 12, 1958, the Union was selected as bargaining repre- sentative by a majority of the employees in the aforestated appropriate unit. On August 6, 1958, the union was accordingly certified by the Board as the exclusive bargaining representative of all the employees in the aforestated appropriate unit. I find that on, and at all times since, August 6, 1958, the Union has been, and is, the exclusive representative of the employees in the aforestated appropriate unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment within the meaning of Section 9(a) of theAct. The complaint alleges, the Respondent's answer admits, the record shows, and I find, that at all times since August 18, 1958, the Respondent has refused to bargain with the Union, upon the latter's request, as such certified exclusive collective-bar- gaining representative of the employees in said appropriate unit. Accordingly, I find that Respondent's refusal to bargain with the Union constitutes a violation of Section 8 (a) (5) and (1) of the Act. 12 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 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 burdening and obstructing com- merce and the free flow thereof. 10 The parties stipulated that the Union's letter was delivered to about 49 employees involved in the election in the following manner : 20 were delivered by hand to em- ployees at their homes on the afternoon of March 10 ; the remainder, addressed to the employees, were deposited in the mailbox located outside the Point Pleasant, West Virginia, post office at about 6:30 p.m. on March 10, at which time the post office was closed. The record further shows that the plant manager first became aware of the Union's letter shortly after the lunch period on March 11, that a substantial number of employees were no longer at the plant at that time, and that additional employees left shortly thereafter. The election was held the following day, March 12, with the polls open from 6-8 a.m. and 10 :30-11 :30 p.m. 11 See Allis-Chalmers Manufacturing Company, 117 NLRB 744, 748. 'a Tennessee Coach Company, 115 NLRB 677, 679. 535828-60-vol. 125-24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I will recom- mend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, I will recommend that the Respondent be ordered to bargain collectively with the Union, upon request, and if an understand- ing is reached, embody such understanding in a signed agreement. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees , including utility employees, em- ployed at Respondent's Gallipolis Ferry, West Virginia, plant, excluding all office clerical employees , plant clerical employees , janitors, and all guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since about August 8, 1958 , the Union has been, and now is, the exclusive representative of the employees in the aforestated appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing to bargain collectively with the Union as the exclusive representa- tive of the employees in said appropriate unit on or about August 18 , 1958, and at all times thereafter, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By said acts the Respondent has also interfered with , restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. The aforesaid unfair .labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: Wn WILL NOT engage in any acts in any manner interfering with the efforts of Textile Workers Union of America, AFL-CIO, to bargain collectively on behalf of the employees in the bargaining unit described below. Wr: WILL bargain collectively, upon request, with Textile Workers Union of America, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described herein, with respect to rates of pay, wages, hours of employment, or other terms or conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, including utility employees, employed at our Gallipolis Ferry, West Virginia, plant, excluding all office clerical employees, plant clerical employees, and all guards, professional employees, and supervisors as defined in the Act. CELANESE CORPORATION OF AMERICA, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.