Johns-Manville Products Corp.

In the Matter Of JOHNS-MANVILLE PRODUCTS CORPORATION and LoM- POC CELITE WORKERS, LOCAL No. 439 OF THE INTERNATIONAL UNION OF MINE, MILL-AND SMELTER WORKERS, AFFILIATED WITH THE C. I. O. In the Matter Of JOHNS-MANVILLE PRODUCTS CORPORATION and INTER- NATIONAL UNION OF MINE, MILL & SMELTER WORKERS In the Matter of JOHNS-MANVILLE PRODUCTS CORPORATION and CELITE MANUFACTURING EMPLOYEES (A. F. OF L.) Cases Nos. C-1251, R-727, and R-728, respectively.Decided November 17',1939 Insulating and Building Materials Manufacturing Industry-Interference, Restraint, and Coercion: charges of, not sustained-Discrimination : charges of, not sustained-Prior Election not Voided : objections alleging intimidation, coercion , and discriminatory lay-offs affecting result of election not sustained- Certification of Representatives : upon results of ballot in prior election. Mr. Charles M. Brooks, for the Board. Pillsbury, Madison & Sutro, by Mr. N. Korte, of San Francisco, Calif., for the respondent. Mr. A. H. Petersen and Mr. K. A. Ellars, of Los Angeles, Calif., for the C. M. E. Mr. R. O. Lamson, of Los Angeles, Calif., for the International. Mr. Raymond J. Compton, of counsel to the Board. DECISION ORDER AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On January 3, 1938, International Union of Mine, Mill & Smelter Workers, herein called the International, filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Johns-Manville Products Corporation, Lompoc, California, herein called the respondent, and requesting an investigation and certification of representatives pur- 17 N. L. R. B., No. 76. 895 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 24, 1938 , Celite Manufac- turing Employees (A. F. of L.), herein called the C . M. E., filed a similar petition . On March 14, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section -9 (c) of the Act and Article III, Sections 3 and 10 (c) (2), of National Labor Relations Board Rules and Regulations-Series 1,- as amended; or- dered a consolidation of the two cases for the purpose of hearing, and also ordered an investigation and authorized the Regional Di rector. to conduct it and to provide for an appropriate hearing upon due notice. On March 30 , 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the respondent , upon the International , and upon the C. M. E. Pursuant to the notice , a hear- ing was held on April 12, 1938, at Los Angeles, California, and con- tinued on April 13, 1938, at Lompoc, California, before Jesse E. Jacobson , the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel, the Interna- tional by Ed Sugar , and the C. M. E. by A. H. Petersen , and all participated in the hearing . Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. On June 22, 1938, the Board issued a Decision and Direction of Election, directing that "an election ' by secret ballot shall be con- ducted within twenty (20) days from the date of this Direction, under the direction and supervision of the Regional Director for the Twenty-first Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the production and maintenance em- ployees of Johns-Manville Products Corporation , at its Lompoc, California , plant who were employed by it during the pay-roll period ending February 27, 1938, excluding supervisory employees , labora- tory workers , engineers, and office and clerical workers, and those who have since quit or been discharged for cause , to determine whether they desire to be represented by International Union of Mine, Mill and Smelter Workers, affiliated with the Committee for Industrial Organization, or by Celite Manufacturing Employees, affiliated with the . American Federation of Labor, for the purposes of collective bargaining, or by neither." 1 An election by secret ballot was conducted under the direction and supervision of the Regional Director on July 8, 1938 . On July 11, _1938, the Regional Director issued his Intermediate Report Upon 17 N. L. B. B. 1055. JOHNS-MANVILLE PRODUCTS CORPORATION 897 Secret Ballot, which was duly served upon the parties to the pro- ceeding.2 As to the balloting and its results, the Regional Director reported the following : Total number of employees eligible __________________________ 183 Total number of ballots counted _____________________________ 152 Total number of votes for Celite Manufacturing Employees (A. F. of L.) --------------------------------------------- 94 Total number of votes for International Union of Mine, Mill & Smelter Workers------------------------------------------ 56 Total number of votes for neither organization --------------- 2 Total number of blank ballots ________________________________ 0 Total number of void.ballots _------------------------------- 1 Total number of challenged votes____ _______________________ 3 Since the challenged votes could not affect the results of the elec- tion, it is unnecessary to make any determination with respect thereto. Oil July 7, 1938, Lompoc Celite Workers, Local No. 439, herein also called the International, filed with the Regional Director a second amended charge 3 alleging that the respondent had engaged 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 Act. On the same day, the International sent a letter to the Regional Director protesting the forthcoming election. On July 15, 1938, the International protested the election and adopted as grounds for its objection the matters set forth in its second amended charge and in its letter to the Regional Director of July 7, 1938. The letter of July 7 alleged in substance the matters contained in the second amended charge, and protested the holding of the elec- tion scheduled for July 8, 1938, on the ground that it would not reflect the free choice of the employees due to the alleged unfair labor practices by the respondent prior thereto. On July 21, 1938, the Board, by the Regional Director, issued its complaint alleging that the respondent h'ad engaged in and was en- gaging in unfair labor practices affecting commerce, within the mean- ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. The complaint and accompanying notice of hearing were duly served upon the respondent, the International, and the C. M. E. The com- plaint alleged, in substance, that the respondent (1) discharged or 2 It was stipulated at the hearing on August 9, 1938 , between counsel for the Board and counsel for the respondent that the Decision , Direction of Election , and Intermediate Report of the Regional Director in Cases Nos . R-727 and R-728 be made part of the record in Case No . C-1251. . 3 The original charge was filed by International Union of Mine, Mill & Smelter workers on April 1 , 1938 . The first amended charge was filed by Lompoc Celite Workers, Local No. 439 ( of the International Union of Mine, Mill and Smelter Workers, affiliated with the C. I. 0.) on April 5, 1938. 898 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD laid off and refused to reemploy certain named employees 4 because of their activity in and affiliation with the International and because they had engaged in concerted activities for the purpose of collective bargaining and other mutual aid or protection; and (2) by these and other enumerated acts and conduct at various other times inter- fered with, restrained, and coerced its employees in the exercise of their right to self-organization and to engage in concerted activities for their mutual aid and protection as guaranteed in Section 7 of the Act. On July 27, 1938, the Regional Director issued and served upon the parties an amendment to the complaint striking therefrom the names of seven employees .5 On July 29, 1938, the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Sections 8 and 10 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, or- dered a further investigation in the representation case and author- ized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice upon the International's objec- tions to the election, and further ordered that the representation case and the case initiated by the filing of the above charges be consoli- dated for the purpose of hearing. On July 29, 1938, the Regional Director issued notice of hearing in the consolidated cases, copies of which were duly served upon all the parties. On August 2, 1938, the respondent filed an answer in which it denied the unfair labor practices alleged in the complaint and set forth as an -affirmative defense that the employees named therein had either voluntarily quit their employment, been discharged for cause, or laid off due to the necessary curtailment of the respondent's pro- duction operations. The answer further alleged as a partial affirma- tive defense that, the complaint could not be maintained as to those alleged violations of the Act which had formed the basis of a charge filed by the International on January 3, 1938,6 and subsequently 4 William L. Pratt, Bruce Pope, Edward John Higgins (erroneously designated as Jack Higgins), John Thomas Bishop, E. C. Barnett, Jr., E. P. Thompson, Kermit R. Basham, Ben Acquistapace, Robert Hardin, Reginald Tognetti, Glen Page, Theodore Jones, Louis Archuleta (erroneously designated as Lewis C. Archuleta), Hubert Donley (erroneously designated as Hugh Donley), Rayburn Donley, R. A. Roberts, William McCormack, Dalos Graf, Edward Walkingstick, J. T. Rogers, Harold Elwin Lovelace, Raymond C. Hall (erro- neously designated as Ray Hall), Harold Van Meter, Claude Van Meter, Frank Farren, Aldon C. Burrill, and Elmer 'Denny, Omer Chambers, Roy McNeill, Charles Bower, William Jenks, Alfred Soto, Manton Doggett, R. L. Fuller, O. B. Luckie, David Mueir, C. A. Cooper, R. O. Seeley, A. B. Jackson, Earl Chambers, Hack O'Hair, S. E. Hockett, John Overman, Bob Vandeventer, Orville Vandeventer, John McCarthy, A. F. Stone, Pratt Tomlinson. W. J. Adamson, and Webb Jay. Omer Chambers, Roy McNeill, Charles Bower, William Jenks, Alfred Soto, Manton Doggett, and R. L. Fuller. e The charge alleged that the respondent had interfered with, intimidated, and coerced its employees, dominated the formation of a labor organization, and discharged George Hopkins, Johnny Bishop, Ed Thompson, and Theodore Storey solely because of their union activities. JOHNS-MANVILLE PRODUCTS CORPORATION 899 withdrawn by the International with the consent of the Regional Director in accordance with a compromise and settlement agreement between the respondent and the International. Pursuant to notice and notice of postponement, a hearing in the consolidated cases was held at Lompoc, California, from August 4 to August 24, 1938, inclusive, before David F. Smith, the Trial Exam- iner duly designated by the Board. The Board and the respondent were represented by counsel, the International by R. 0. Lamson, and the C. M. E. by A. H. Petersen and K. A. Ellars, and all participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the inception of the hearing, the re- spondent moved to dismiss that part of the complaint to which the respondent's partial affirmative defense related. The Trial Examiner denied the motion. At the same time, both the respondent and the C. M. E. moved that the order for further hearing in the representa- tion case be set aside as not made in accordance with the Board's Rules and Regulations, stating as ground in support thereof that the objections to the Regional Director's Intermediate Report on the ballot were not filed within the required period,' and further that they had never received copies of the protest letters embodying such objections, and had not been informed of their contents. The Trial Examiner denied the motions. The ruling was not prejudicial under the circumstances. In response to the objections of the C. M. E., the Trial Examiner offered to adjourn the hearing until such time as counsel for the Board advised in writing as to the specific grounds upon which the International filed its protest. Counsel for the C. M. E., however agreed that the hearing proceed upon assurance that he would be so advised. The Trial Examiner directed that the re- spondent also be furnished with copies of the International's letters of protest, and on August 11, 1938, counsel for the Board presented copies thereof to both the respondent and the C. M. E. Prior to the hearing, the respondent and the C. M. E. had been served with copies of the complaint and the second amended charge which consti- tuted the basis of the objections to the election filed by the Interna- tional . The C. M. E. and the respondent were thus advised before and during the course of the hearing in due time to meet the issues presented by the objections, and were not prejudiced by the delay in receiving copies of the letters of protest. At the conclusion of the Board's case, the Trial Examiner granted motions by counsel for the Board to amend the pleadings to conform ' The Intermediate Report on the Ballot was issued on July 11 , 1938. The letter protest- ing the election on the grounds contained in the second amended charge was filed by the International on July 15, 1938. The rule providing for the filing of objections within 5 days was complied with. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the proof, and to dismiss the complaint without prejudice as to 16 employees named therein.8 At the same time, the respondent re- newed a previous motion to dismiss the representation cases on the ground that they were concluded at the time the Regional Director filed his Intermediate Report Upon Secret Ballot, and moved that the complaint be dismissed for want of substantial evidence to sustain the allegations thereof. The Trial Examiner denied these motions. At the close of the hearing, the respondent renewed its motion to dismiss. The Trial Examiner reserved rulings thereon for his Inter- mediate Report. At the same time, the C. M. E. moved that the Board certify it as the duly elected representative of the respondent's employees pursuant to the election by secret ballot held on July 8, 1938, and in accordance with the Intermediate Report of the Regional Director on said ballot. The Trial Examiner did not rule upon this motion, according it the status of an open motion in the record addressed to the Board. The motion is hereby granted, for reasons appearing below in Section IV. The Trial Examiner notified the parties to the proceeding that they were entitled within 10 days from the receipt of the Intermediate Report to request oral argument be- fore the Board, and were further advised of their right to file briefs with the Trial Examiner. None of the parties availed themselves of the opportunity to file briefs with the Trial Examiner, and the respondent and the International waived oral argument before the Board. On April 3, 1939, the Trial Examiner issued his Intermediate Report, a copy of which was duly served upon all parties, finding that the respondent had not engaged in unfair labor practices affect- ing commerce within the meaning of Section 8 (1) and (3) and Sec- tion 2 (6) and (7) of the Act, and granting the aforesaid motions for dismissal of the complaint made by the respondent. The Trial Ex- aminer did not make any ruling on the motion for dismissal of the representation cases, stating that he was without authority to dispose of such motion. The motion is hereby denied. Thereafter the Inter- national and W. L. ;McCormack, an employee alleged in the com- plaint to have been discriminatively discharged, filed exceptions to the Intermediate Report. The respondent and the International also filed briefs which the Board has considered. During the course of the hearing, the Trial Examiner made other rulings on motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. In its exceptions the International alleged bias and preju- 80. B. Leckie. David Mueir, C. A. Cooper, R. 0. Seeley, A. B. Jackson. Earl Chambers. Hack O'Hair, S. E. Hockett, John Overman, Bob Vandeventer, Orville Vandeventer, John McCarthy, A. F. Stone, Pratt Tomlinson, W. J. Adamson, and Webb Jay. JOHNS-MANVILLE PRODUCTS CORPORATION, 901 dice on the part of the Trial Examiner against the Board and the International.' Although the record discloses some instances of abruptness and impatience by the Trial Examinei during the hear- ing, the record is devoid of any indication that the Trial Examiner was biased or conducted himself in a manner prejudicial to the Board's case or to the interest of the International in the proceedings. The Board has considered all the exceptions to the Intermediate Report and the briefs, and in so far as the exceptions are inconsistent with the findings of fact, conclusions of law, and order set forth be- low, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent,. a subsidiary of Johns-Manville Corporation, is organized under the laws of the State of Delaware and maintains its principal office in New York City. On the Pacific Coast, the re- spondent owns and operates plants at Los Angeles, Redwood City, Pittsburg, Watson, and Lompoc, California. The Lompoc plant, the . only one with which these proceedings are concerned, occupies 5,000 acres of land on which the respondent is engaged in the quarrying and processing of diatomaceous earth from which it manufactures various filtration materials, filter admixtures, and insulating mate- rials consisting of natural and pressed brick. The filtration products are distributed directly by its own sales force and the insulation materials are distributed generally through private dealers and dis- tributors. An average of 260 persons are employed by the respondent at the Lompoc plant, of which 198 are engaged in production and maintenance. In 1937 the respondent shipped from its Lompoc plant approxi- mately 73,000 tons of manufactured products, 89 per cent of which were consigned to points outside the State. of California. The gross value of these products was in excess of $1,000,000. During the same year, it purchased supplies consisting mainly of sacks and other containers for its products, which amounted to approximately $400,- 000, one-fourth of which calve from outside the State of California. II. THE ORGANIZATIONS INVOLVED Lompoc Celite Workers, Local'No. 439, is a labor organization affili- ated with the International Union of Mine, Mill and Smelter Work- ers, which in turn is affiliated with the Committee for Industrial Organization,9 herein called the C. I. O. It admits to membership 9 Now the Congress of Industrial Organizations. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all the production and maintenance employees of the respondent at its Lompoc plant. Celite Manufacturing Employees is a labor organization affiliated with the American Federation of Labor, admitting to membership all production and maintenance employees of the respondent at its Lompoc plant. III. THE- ALLEGED UNFAIR LABOR PRACTICES A. Chronology of events On July 30, 1937, the respondent posted in its plant a notice to its employees. This notice set forth the respondent's approval of the principles of collective bargaining, stated its intention to abide by the Act, and requested the cooperation of the employees in "employ- ing the mechanisms which it [the Act] established for the peaceful settlement of differences." A month or so later, the employees of the respondent formed an organization known as the Independent Celite Workers Association, herein called the Independent, which on or about November 12, 1937, was accorded recognition by the respond- ent as the collective bargaining agent of its employees.ao In November 1937 the respondent deemed it necessary to curtail operations due to the then current business recession. Forty-nine employees were laid off during that month. This lay-off and the problem of curtailment of production generally were the subject of discussion at a meeting between the respondent and the Independent on December 3, 1937, at which time the respondent announced that it found it necessary to reduce employment to a 4-day-week basis, starting December 511 On December 14, 1937, C. J. Powers, a representative of the Inter- national, addressed a meeting of members of the Independent at the request of its president, E. P. Thompson, an employee of the respond- ent. At this meeting, 75 of the 96 members present voted to affiliate with the International. This meeting marks the beginning of the International's efforts to organize the employees at the respondent's plant. On December 16, 1937, the respondent again posted a notice of policy similar to that posted on July 30, 1937. On December 21, 1937, the respondent called a meeting of its employees, at which Christmas 10 On November 1, 1937 , the Independent filed a charge with the Regional Director alleg- ing a refusal by the respondent to recognize and meet with the representatives of the Inde- pendent for the purposes of collective bargaining . Thereafter, the respondent explained to a representative of the Board that its reply to the Independent's letter requesting recogni- tion was inadvertently delayed due to a change in plant managership and that it had since met the representatives of the Independent . So far as the record shows the above charge was withdrawn. 11 Prior to this time , employment had been on the basis of a 5-day week. JOHNS-MANVILLE PRODUCTS CORPORATION 903 bonus checks were distributed and an address was delivered by Alexander Cromwell, vice president of the respondent in charge of Pacific Coast operations. Cromwell gave a brief history of. the respondent's operations at Lompoc and elsewhere, pointed out the effect the business recession was having on the Lompoc operations, and discussed the Act and the respondent's agreement with its- policy. The same evening, the employees of the respondent held a meeting for the purpose of discussing the division of opinion which existed among them as to what labor organization they desired to represent them. Some employees favored a continuance of the Independent; many preferred affiliation with the International ; others were desir- ous of an organization affiliated with the American Federation of Labor. The meeting was conducted as an open forum and representa- tives of both the International and the American Federation of Labor were afforded an opportunity to express their views. At this meeting Thompson resigned as president of the Independent. With this meeting organizational activities by the C. M. E. commenced. For several months thereafter both organizations were engaged in rival organizing activities. In the latter part of January 1938 the respondent felt that the efficiency of its operations was being ad- versely affected by the afore-mentioned activities, and on January 29, 1938, posted a notice to its employees setting forth rules prohibit- ing the distribution of printed material or the solicitation of mem- bership to any "welfare, religious, fraternal, or labor organization" during working hours or in operating areas. The record does not show any discriminatory application by the respondent of these rules in favor of or against either of the rival organizations. On December 29, 1937, the respondent made a further lay-off of 13 employees, including Thompson, former president of the Independ- ent, which increased to 25 the total lay-offs for the month of Decem- ber. On January 3, 1938, the International filed charges with the Regional Director alleging in part the discriminatory discharge of -Thompson, George Hopkins, John Thomas Bishop, and Theodore Storey.12 On January 5, 1938, at the request of the Regional Direc- tor, the respondent held a conference with a grievance committee of the International composed of Powers, Thompson, and Ben Acquista- pace, another employee laid off on December 29, 1937. The respond- ent was represented by Cromwell, O. B. Westmont, factory manager, and R. B. McClellan, manager of the respondent's industrial rela-. tions'department, and offered in detail the reasons for the termination of employment of not only Thompson and Acquistapace, but of eight 22 See footnote 6, supra. 247384-40-vol. 1.7--58 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees who were members of the International.13 As a result of the conference, it was agreed that the International would withdraw its charges upon the offer of reemployment to Thompson. Acquistapace, and Webster.14 On January 10, 1938, Thompson and Acquistapace were reemployed, but Webster declined to accept the respondent's offer. On February 25, 1938, the Regional Director noti- fied the respondent that the charges had been withdrawn. During the months from January through May 1938 the respondent mailed to each of its employees six printed pamphlets outlining its policies relative to collective bargaining, wages, the closed shop, work- ing conditions, and hours of work. The pamphlets were general in nature and under the circumstances could not be considered as inter- fering with the self-organization of its employees. In June 1938 prior to the election directed by the Board on July 8, 1938, a continued decrease in the respondent's sales and a corre- sponding increase in its inventories led the respondent further to curtail its operations and 58 employees were laid off during that month. B. The alleged interference, restraint, and coercion While there is testimony in the record that the respondent had expressed hostility toward the International, largely through the anti- union statements of its supervisory employees, such testimony is in direct conflict with that adduced by the respondent. In his Inter- mediate Report, the Trial Examiner set forth in great detail all the pertinent testimony, resolving virtually all conflicts therein in favor of the respondent, and stressing his observation of witnesses called to testify by the Board and his inability to give credence to their testimony. It would serve no purpose here to repeat all the testimony so fully set forth by the Trial Examiner, inasmuch as we see no- reason, on the basis of the record, for disregarding his findings as to the credibility of the witnesses. Accordingly, we find that the respondent has not interfered with, restrained, or coerced its em- ployees in the exercise of their rights guaranteed in Section 7 of the Act. C. The discharges and lay-offs The record establishes that during the period in which the alleged discriminatory discharges and lay-offs occurred the volume of the respondent's business decreased and its inventories increased, and 18 Morton W. Webster, William L. Pratt, Bruce Pope, Edward John Higgins, John Thomas Bishop, O. B. Luckie, E. C. Barnett, Jr., and Kermit R. Basbam. 14 Without admitting any violation of the Act, the respondent agreed to offer reemploy- ment to Thompson as a warehouseman , and to Acquistapace and Webster as quarrymen. At no time was there a request by these employees for reinstatement to their former posi- tions, which at the time of the hearing remained unfilled. JOHNS-MANVILLE PRODUCTS CORPORATION 905 that the working force was reduced as a result thereof. Since the -record does not show that the respondent curtailed its operations to interfere with the self -organization of its employees , any unlawful discrimination against members of the International would have to be found in the manner in which the respondent selected employees for discharge or lay-off. Two other matters of general importance bear upon most of the 'individual lay-offs and discharges alleged in the complaint . Firstly, it is the established practice of the respondent in determining lay- -offs and discharges to consider not only seniority , but also ability, including adaptability to transfer from one department to another as the character of the respondent 's operations occasionally required, marital status, number of dependents , and residence within or with- out the State, preference being accorded those residing within the 'State. Secondly, the Trial Examiner found that the testimony relat- ing to an expressed hostility by the respondent toward the Inter- national was offered by witnesses to whom he accorded no credibility. Since the record contains no evidence warranting the disregarding of the findings of the Trial Examiner as to the credibility of wit- nesses, we find that the respondent had manifested no antagonism toward the International other than might be found in the manner of, and the circumstances surrounding, the discharge and lay-off of its members. 1. The December discharges and lay-offs E. P. Thompson, William L. Pratt, Edward John Higgins, John Thomas Bishop, E. C . Barnett, Jr., Ben Acquistapace , Bruce Pope, and Kermit R. Bashamn, were among the 25 employees laid off in December 1937 . All were laid off on December 29, with the excep- tion of Bishop who was discharged on December 23, 1937. Their cases were fully discussed at the conference between the respondent and the International on January 5, 1938, at which time the Inter- national accepted as satisfactory the reasons advanced by the re- .spondent for their dismissal, and upon the reemployment of Thomp- son and Acquistapace was later permitted to withdraw the charges it had filed with the Regional Director ?" With the exception of Thompson , so far as the record shows , the only union activity at- tributed to these employees was the fact that they had joined the International . There were 18 employees laid off in December 1937 after the advent of the International on December 14, and 56 prior thereto during the months of November and December . None of these 18 employees laid off in December were members of the Inter- national , a fact insufficient to support an inference that the respond- 11 See footnote 6, supra. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent availed .itself of the opportunity afforded by the curtailment of operations to rid itself of International members since there was, no showing in the record that such lay-offs were disproportionate to the number of members in the International as compared with the total number of employees. Furthermore, the record does not show that the criteria for determining lay-offs were discrimina- torily applied by the respondent against members of the Interna- tional. Thompson was single with no dependents and the last man hired in the machine shop. Although he was responsible for the advent of the International. and was an officer thereof, a finding that Thompson's release was occasioned by his union activity is not war- ranted, in the absence of credible evidence showing hostility to the International by the respondent or its disapproval of his union activity. Barnett had been employed by the respondent for only 8 months. In addition, Barnett was considered by the respondent to be an exceptionally good worker, and for this reason was one of three former employees rehired in April 1938. Acquistapace had no seniority in the garage and work was unavailable in the quarries where he had formerly been employed driving truck. He was re- employed ,is a result of the agreement concluded between the re- spondent and the International on January 5, 1938, at common labor, employment which the respondent had not offered to him at. the time of his lay-off because its experience had shown that assign- ing skilled employees to common labor jobs was unsatisfactory. Acquistapace voluntarily quit on June 11, 1938. Pope and Basham were the last men hired in the excavation department, having been employed by the respondent for the first time in April 1937. The work of both men was considered satisfactory. Basham was rehired on January 29, 1938, and the respondent stated its willingness to .rehire.Pope when business conditions. permitted. Bishop, Pratt, and Higgins, were selected for lay-off for additional reasons entirely unrelated to their membership in the International. Bishop was a fifth-class machinist senior on machine work only to Roberts, a first-class machinist. For some time prior to the advent of the International, Bishop had been dissatisfied with the rate of his advancement in the machine shop. This dissatisfaction became so great that it was reflected in the quality of Bishop's work. He would wander around the shop during working hours disturbing others with his criticism of the respondent, of his foreman, Tony Avila, and of the work of those having a higher rating than him- self. Bishop admittedly was warned a number of times about neglecting his work, and on one occasion was called into the office of Harry Betaque, plant engineer, where he apologized for making remarks concerning the granting of leave privileges to Avila by the JOHNS-MANVILLE PRODUCTS CORPORATION 907 respondent. When work became slack in the machine shop due to the general curtailment in operations, Bishop was selected for lay- ,off because of his dissatisfaction and conduct set forth above. Pratt and Higgins were operating a power shovel at the time of their transfer to truck driving in the latter part of November 1937. Both were aware that their transfer was forthcoming, and expressed their intention of securing jobs as shovel operators elsewhere. On November 24 and 26, 1937, H. U. Gaggs,`'superintendeiit"•of excava- tion, wrote letters to friends associated with another company in an effort to assist them in obtaining other shovel operating em- ployment. Despite the knowledge that their transfer was due to the curtailment in excavation operations, Pratt and Higgins ex- pressed their dissatisfaction with the change. Pratt demanded a bulldozing job for which he was unqualified, and Higgins protested that he was a better operator than another employee retained on shovel operations. Pratt also threatened to enter Gaggs' office to examine the service records, and disrupted the trucking crew by persuading them to report for work later than had been their cus- tom Is On December 16, 1937, Pratt and Higgins received. an over- payment in their pay checks which they failed to bring to the at- tention of the respondent. On December 20, 1937, both Pratt and Higgins went to Bishop, California, to take the California State Civil Service Examination for power-shovel operators. At their request, Gaggs gave both men service letters in which he stretched their experience to aid them in meeting the civil service require- ments. It was because of the foregoing considerations that the re- spondent was unwilling to release others in preference to Pratt and Higgins in the lay-off which followed. 2. The April discharges- Aldon C. Burrill. and Elmer Denny joined the International in January 1938, but engaged in no other union activity. On April 21, 1938, Burrill was transferred from the garage to the sack room. Although his new duties were no more arduous than those he had been performing in the garage, Burrill objected to his new assign- ment because of a back injury. received in 1933 and requested sev- 'eral days leave to see his attorney and to "get straightened out." He was granted leave for half a day, but failed to report for work until 4 days later, on April 26, 1938, at which time he was informed ,of his removal from the pay roll. Denny was discharged on April 23, 1938, for insubordination. The relationship between Denny and 16 It was the practice of truck drivers to report to the garage at 7 : 30 a. m. In order to have their trucks under the power shovels at 8: 00 a. m., their regular time for commencing work. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his foreman, Carl' Dennis, had become strained due to previous dis- agreements, and Dennis finally requested his release following a heated . argument over the quality of his work. Although there might be some doubt as to whether Burrill and Denny merited dis- missal, there was nothing in the circumstances surrounding their discharge which related to their membership in the International. 3. The June discharges and lay-offs E. C. Barnett, Jr., E. P. Thompson, Kermit R. Basham, Robert Hardin, Reginald Tognetti, Glen Page, Theodore Jones, Louis Archuleta, Hubert Donley, Rayburn Donley, R. A. Roberts, William McCormack, Dalos Graf, Edward Walkingstick, J. T. Rogers,. Harold Elwin Lovelace, Raymond C. Hall, Harold Van Meter, Claude Van Meter, and Frank Farren, were among the 58 employees laid off from June 4 to July 1, 1938. A majority of these employees were engaged in the brick operations which, due to the unusually high inventories and decreased shipments in this particular depart- ment, were completely shut down as a part of the general curtail- ment in production. Again with the exception- of Thompson, so far as the evidence shows, the union activity of the above persons was confined to membership in the International. The president, vice president, and financial secretary, and many other members of the International were retained by the respondent. Also, 23 of the 58 employees released were members of the C. M. E. Under these circumstances a finding that the respondent was taking advantage of the lay-off to select for dismissal members of the International in preference to 'those belonging to the C. U. E. is not warranted. There is also no other evidence in the record to warrant a finding that the Company assisted the C. M. E. in its organizational activities. The selection of Thompson and, Barnett for this second lay-off was determined by the same factors which led to their lay-off in Decem- ber 1937. The selection of the other employees laid off in June was also made in accordance with the normal considerations and pro- cedure used by the respondent in releasing employees. Walkingstick, Rogers, Harold Van Meter, Hubert Donley, Rayburn Donley, McCor- mack, Claude Van Meter, Jones, and Archuleta were all hired in 1937, which comparatively short period of service was a determining factor in their lay-off. In addition to their short period of service, all the foregoing employees with the exception of Walkingstick, Rogers, and McCormack were from outside the State. Hall was single. Hall, Walkingstick, Rogers, Claude and Harold Van Meter, and Hubert and Rayburn Donley were employed in brick operations and had no mill experience justifying a transfer to that department. The work JOHNS-MIANVILLE PRODUCTS CORPORATION 909 of - McCormack and Harold Van Meter was below the average of others retained. Although Tognetti, Page, Graf, Hardin, Roberts, and Farren had, longer periods of service, their release, so far as the record shows, was determined on the basis of other non-discriminatory factors. Tognetti, Farren, and Graf, were single with no dependents. Hardin also was single and was from outside the State, which facts had occasioned his lay-off in November 1937. He had been rehired in February 1938. Roberts was an older man who had been transferred from the machine shop in April and assigned to janitor work in the mill. Although he was aware that the lack of work in the machine shop was the cause of his transfer, Roberts, being a skilled employee, was dissatisfied with his demotion to common labor. He was known to be contemplating moving to Los Angeles, and this fact coupled with his physical incapacity for work in the mill other than as a janitor was responsible for his dismissal. Page had the greater part of his experience in brick 'operations and in ability rated below others retained by the respondent. Lovelace refused to go with his crew when it was assigned to mill work following the curtailment in exca- vation operations, and told his foreman that he "would as soon be fired as go to the mill." Accordingly, he was laid off. Basham did not testify, and so far as the record shows, voluntarily quit his em- ployment to accept a position elsewhere. We find that the respondent has not discriminated in regard to the hire and tenure of employment of the employees listed in Appen- dix A,11 and has not discouraged membership in a labor organization. IV. THE ELECTION OF JULY 8, 1938 The International based its protest of the election held on July 8,. 1938, solely upon the unfair labor practices of the respondent alleged in the complaint. Since we have found that the respondent did not engage in the unfair labor practices alleged in the complaint, it fol- lows that the results of the election reflected the free choice of the. employees. Furthermore, nearly all of the employees separated from the respondent's pay roll in June 1938, had been employed on Feb- ruary 27, 1938, the date fixed by the Board for the determination of eligibility of employees to vote. Seven of the 23 members of the C. M. E. laid off in June and 11 of the 17 eligible members of the International named in the complaint, who were laid off in June, voted in the election. The fact that the remaining eligible employees who were laid off did not avail themselves of the opportunity to vote cannot be attributed to any unfair labor practices on the part of the 17 All the employees discussed above are listed in Appendix A. - 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent. Therefore, in accordance with the election results, we shall certify the C. M. E. as the representative of the respondent's employees for the purposes of collective bargaining. . Upon the basis of the above findings of fact, and upon the entire record in the cases, the Board makes the following : CONCLUSIONS OF LAW 1. The operations of the respondent occur in commerce, within, the meaning of Section 2 (6) of the Act. 2. Lompoc Celite Workers, Local.No. 439 of the International Union of Mine, Mill, and Smelter Workers, affiliated with the C. I. O. and Celite Manufacturing Employees (A. F. of L.), are labor organi- zations, within the meaning of Section 2 (5) of the Act. 3. The respondent has not discriminated in regard to the hire and tenure of employment of the employees named in Appendix A, and has not discouraged membership in a labor organization, within the meaning of Section 8 (3) of the Act. 4. The respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (1) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the complaint against the respondent, Johns-Manville Products Cor- poration, Lompoc, California , be, and it hereby is, dismissed. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, IT IS HEREBY CERTIFIED that Celite Manufacturing Employees, affili- ated with the American Federation of Labor, has been designated and selected by a majority of the production and maintenance em- ployees of Johns-Manville Products Corporation, at its. Lompoc, California, plant, excluding supervisory employees, laboratory work- ers, engineers, and office and clerical workers, as their representative for the purposes of collective bargaining and that, pursuant to Sec- tion 9 (a) of the National Labor Relations Act, Celite Manufactur- ing Employees, affiliated with the American Federation of Labor, is JOHNS-MANVILLE PRODUCTS CORPORATION 911 the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. APPENDIX A Ben. Acquistapace Theodore Jones Louis Archuleta Harold Elwin Lovelace E. C. Barnett, Jr. William McCormack Kermit R. Basham Glen Page John Thomas Bishop Bruce Pope Aldon C. Burrill William L. Pratt Elmer Denny R. A. Roberts Hubert Donley J. T. Rogers Rayburn Donley E. P. Thompson Frank Farren Reginald Tognetti Dalos Graf Claude Van Meter Raymond C. Hall Harold Van Meter Robert Hardin Edward Walkingstick Edward John Higgins. MR. WILLIAIII M. LEISERSON took no part in the consideration of the above Decision, Order, and Certification of Representatives.