E. I. du Pont de Nemours & Co.

In the Matter of E. I. DU PONT DE NENIOURS & COMPANY, BELLE, W. VA. and DISTRICT 50, CHEMICAL DIVISION U. M. W. OF A., AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS, 310 PEOPLES EXCHANGE BAND BUILDING, CHARLESTON, W. VA. Cases Nos. C-1440 and R-1.¢59.-Decided Jwne, 2 , 1940 Chemical Industry-Interference, Restraint, and Coercion: anti-union state- ments to employees ; maintenance of * employee . representation plan ' and suc- cessor organization ; grant of wage increase in excess of that requested by company-dominated organization to hinder organizational efforts of outside union-Company-Dominated Union: domination and interference with. forma- tion and administration ; support of; independent union held successor, of two Employees' Associations, both organizations formed and supported by the Company, the 'first providing for management representatives and the second eliminating management representatives ; hostility to outside union and pub- lication in respondent's magazine of announcement^ ' of forthcoming organiza- tion of independent union, held to dissipate effect of "neutrality notice";. refusal to recognize independent, despite alleged 50.2 per cent majority, not indicative . of independence-Remedy: Company ordered to disestablish all three dominated organizations-Investigation of Representatives : controversy concerning rep -resentation of employes : Company refuses to recognize respective unions until certified . by the Board-Unit Appropriate for Collective Bargaining :, all hourly paid production, maintenance ,' and construction employees, Class 3 clerks and Class 3 stores clerks, who perform primarily manual work , conductors and chauffeur-Election Ordered Mr. William S. Gordon, for the Board. Mr. Clyde M. Spargo, of Wilmington, Del., Price, Smith d Spilman, by Mr. Robert S. Spilman and Mr. Robert S. Spilman, Jr. and Mr. Hawthorne D: Battle, of Charleston, W. Va., for the respondent. Mr. Herman Edelsberg, of New York City, for the U. M. W. Ritchie, Hill d Thomas, by Mr. M. E. Boiarsky and Mr. Charles Ritchie, of Charleston, W. Va., for the intervenor, ACE... Mr. Claude L. Smith and Mr. R. E. O'Connor, of Charleston, W. Va., for the intervenor, Federation. Mr. Frederick R. Levinstone, of counsel to the Board. 24 N. L. R. B., No. 98. 919 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon charges and amended charges duly filed by District 50, Chemical Division of the United Mine Workers of America,l herein called the U. M. W., the National Labor Relations Board, herein called the Board, by Phillip G. Phillips, Regional Director for the Ninth Region (Cincinnati, Ohio) issued its complaint dated May 19, 1939, against E. I. du Pont de _Nemours & Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting 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. With respect to the unfair labor practices the complaint, as amended, alleged in substance that the respondent through its officers, agents, and persons acting in its behalf, had dominated and interfered with the formation and ' administration of, and contributed support to, the Employees Representation Plan, known as the Works Council, the Employees' Council Plan, and the Association of Chemical Em- ployees, herein called ACE, each of which organizations was alleged to be the same as the. others "and/or the-successor of each other"; that the respondent had discouraged its employees from becoming or remaining members of the U. Al. W.; and that by these and other acts the respondent had interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the i Act. On June 15, 1939, the respondent filed its answer admitting certain allegations of the complaint but traversing others and making certain allegations by way of an affirmative defense. On October 19, 1938, the U. M. W. filed with the Regional Director for the 'Ninth Region' a, petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent and requesting an investigation and certification- of representatives, pursuant to Section 9 (c) of the Act. On April 25, 1939, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board. Rules and Regulations-Series 1, as amended, ordered an investigation and 'Designated in the charge and complaint as West Virginia Industrial Union Council, Affiliated with the Committee for Industrial Organization. E. I..DIY PONT ' DE NEMOURS & COMPANY 921 authorized.the Regional Director to conduct it and to provide, for an appropriate hearing upon .due notice and acting pursuant to Article III, Section 10 (c) (2) and Article II, Section .37 (b) of said Rules and Regulations, further ordered that the representation proceedings and the proceeding with respect to. the alleged unfair labor practices be consolidated for the purposes of hearing. On June 1, 1939, the Regional Director granted a motion of ACE to intervene in the proceedings. Pursuant to notice a hearing was held at Charleston, West. Vir- ginia, from June 22 through August 4, 1939, before Berdon M. Bell, the Trial Examiner duly designated by the Board. At the opening of the hearing ACE moved to have its petition for certification, which had been previously dismissed by the Board in a prior 'repre sentation proceeding, reinstated and consolidated with its motion to intervene in the proceeding with respect to the alleged unfair labor practices. The Trial Examiner denied this motion on the ground that the position of ACE as. intervenor was the same as if its petition had been reinstated. The West Virginia State Federation of Labor, herein called the Federation, moved to intervene in the representation proceeding. Leave to intervene was granted in so far as the interests of the Federation were affected by the proceeding. During the course of the hearing International Brotherhood of Boiler Makers, Iron Ship Builders and Welders and Helpers of America, moved to intervene in the representation proceeding. The motion was denied on the ground that the International was fully represented in the proceeding by the Federation. The motion was later withdrawn and the International participated in the proceeding through the Federa- tion as its representative. The respondent, the U. M. W., ACE, and the Federation were represented by counsel, participated in the hear- ing, and. were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. During the course of the hearing the Trial Examiner ruled on various motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 28, 1939, the Trial Examiner filed an Intermediate Report in which he found that the respondent had not engaged in, unfair labor practices within the meaning of Section 8 (2) of the Act with respect to the formation of ACE and that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act with respect to the formation and administration of the Works and Employees' Councils. He accordingly recommended that 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent cease and desist therefrom and that it cease giving recognition to and disestablish the Works and Employees' Councils as the collective bargaining representative or representatives of any of its employees . Thereafter the respondent and the U. M. W. filed exceptions to the Intermediate Report, supported by briefs and, fol- lowing due notice to all parties , presented oral argument before the Board in Washington, D. C.,.on February 29, 1940. The Board has considered the exceptions to the Intermediate Report and , except as they are consistent with . the findings, conclusions , 7 and order below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT E. I. du Pont de Nemours & Company , a Delaware corporation, is engaged in the manufacture and distribution of chemical products including synthetic ammonia, urea -ammonia liquor , crystal urea,. "Uramon," formamide , and other ammonia products ; . methanol, higher alcohols, aliphatic acids and esters, methacrylate resins, "Zerone" anti-freeze, hydrogenated products, aqua ammonia, "Ex- celsior" brand carbonate of ammonia and bicarbonate of ammonia, Mycoban" rope, . and mold inhibitor. Said chemical products are sold through the respondent's principal office located in Wilmington, Delaware. We are concerned here only with the respondent's plant located at 'Belle, West Virginia. The principal materials used by the respondent in the . manufacture of its products at the Belle plant are coal, shipping containers , cocoa- nut oil, phenol, and castor oil . The total cost of all materials used at the Belle plant during the year 1938 was, in excess of $3,000,000, more than 50 per cent of which was obtained from States other than the State of West Virginia . During the year 1938 the value of all products produced by the respondent at its Belle plant was in excess of $15,000,000, more than 95 per dent of which was transported in interstate commerce to purchasers in States other than the State of West Virginia, or to other of the respondent's plants not located in West Virginia. As an integral part of its business the respondent owns and oper- atesplants and places of business in approximately 78 localities in 27 States. It maintains and operates sales offices for the sale of its products produced at the Belle plant at the following locations, among others : New York City, Philadelphia , St. Louis, Chicago, San Francisco, and Wilmington , Delaware . It employs between 2,000 E. I. DU PONT DE NEMOURS & COMPANY.. 923 and 3,000 persons at its Belle plant, depending upon business.require- meats. The, respondent admits that, it is engaged in _ interstate commerce within the meaning of the, Act. II. THE ORGANIZATIONS INVOLVED District 50, Chemical Division of the United, Mine Workers of America, is a labor organization affiliated with the Congress of Indus- trial Organizations, admitting to membership non-supervisory pro- duction employees of the respondent. Works Council was an unaffiliated labor organization maintained under an employees'' representation plan in which membership among the respondent's employees at the Belle plant was automatic. Employees' Council was an unaffiliated labor organization in ,which membership among the respondent's employees at the Belle plant was automatic. Association of Chemical Employees is an unaffiliated labor organi- zation admitting to membership non-supervisory production, techni- cal, and clerical employees of the respondent at the Belle plant.. West Virginia State Federation of , Labor is a labor organization affiliated with-the American Federation of Labor admitting to mem- bership production and certain minor supervisory employees of, the, respondent. III. THE UNFAIR LABOR PRACTICES A. The Works Council The first of three successive unaffiliated labor organizations formed at the Belle plant. was part of an employees' representation plan de- vised and introduced by the respondent in all of its plants in June 1933, and was known as the Works Council.a Under the terms, of the a The Works Council was introduced to the Belle plant in a notice dated June 26, 1933, as follows : To ALL EMPLOYns : The attached Employes ' Representation Plan is being offered to all employes of this works for their voluntary acceptance or rejection . The same Plan is being offered to the employes of every works of the du Pont Company and subsidiary companies. This , Plan will give employes, through elected representatives -of their own choos- ing, a voice in determining the conditions under , which they work. It will also provide a means whereby the employes and the Management can get together to dis- cuss other problems of mutual interest for the benefit of both. The recently enacted National Industrial . Recovery Act expects collective cooperation between the Man- agement and its employes , and this Plan provides a means for this. The success of this Plan in accomplishing this purpose will depend on your interest in it. A general election will be held at this works on June 29, 1933, at which time you will be given an opportunity to accept or reject the Plan ; and on Jul 3 1933 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Works Council, employee groups elected representatives from each of the six departments into. which, the respondent's operations were divided 3 and the management appointed an equivalent number of representatives. The representatives were known as "councilmen" and composed the Works Council, through which the Plan was admin- istered. , Membership of the employees in the representation plan was automatic, but no provision was made for meetings of the general membership nor was any such meeting ever held. The constitution of the Works Council made no provision for dues and all of its expenses, including printing costs, were borne by the respondent. Among other things the respondent provided a council room on its premises in which meetings were held and also furnished a secretary to the Council, who was not a member thereof. Minutes of Works Council meetings were sent to the respondent's Service Department in Wilmington and on several occasions action taken by the Council was rescinded after veto of the Service Department. Minutes of the Works Council were dittoed 4 and posted 'on the bulletin boards by the respondent, and excerpts therefrom were also published in the Hyper News, a monthly publication established by the respondent for that purpose and distributed to the employees with their pay envelopes. B. The Employees' Council In the early part of March 1937 the U. M. W. began an organiza- tional campaign in all chemical plants in the Kanawha River Valley, where Belle is located. On March 11, 1937, the Charleston Daily Mail 5 carried a banner headline to this effect and announced that the U. M. W. would hold a rally in Charleston on March 12. On the same day that this notice was published, a special meeting of the Works Council Was called: Seibert J.. Toney, president of the Works Council, opened the meeting "by stating that due to the present unsettled condition of .the Labor mind and the very evident compe- tition between the three types of Labor Organization, it was the feel- ing of many of the elected representatives that some modification should be effected * * *" so "that the Council would be, in a stronger position." The'three types of labor organization referred to were the C. I. O., A. F. of L., and unaffiliated organizations. another election will be held to nominate a representative to the Works Council from your section of the Works. If two-thirds of the employes on the Works accept the Plan, it will become effective immediately., Your foreman , supervisor or the employment office will explain any points in con- nection with the Plan which are not clearly understood. The Works Council Plan was adopted after It ratifying vote of all employees in the Belle plant including all supervisory officials with the exception of J. L. -E. Cheetham , general manager. - 3 The number of departments was increased to nine on January 15, 1936. * "Ditto" is a duplicating process. Published in Charleston, West Virginia;. Charleston is about 10 miles from Belle. E. I. DU PONT DE NEMOUItS & COMPANY 925 Following Toney's suggestion, a committee of six, made up of three employee and three management-appointed representatives, was des- ignated to revise the Plan. The committee thereupon worked until midnight and submitted a revised Plan, designated as the Employees' Council Plan, at a special meeting the next day, March 12. The Employees" Council Plan was different in only one material respect from the Works Council Plan; namely, management-appointed repre- sentatives were eliminated. Like the Works Council, it made no pro-' vision for any general assembly of the employees. In accordance with the constitution and bylaws of the Works Council requiring two separate votes for revision or amendment, the Works Council voted its approval of the revised Plan at this meeting. It was then sub= mitted to the Belle plant management, who in turn sent the Plan by special messenger to the Service Department at the respondent's principal office in Wilmington, Delaware, for approval. The special messenger was instructed by J. L. E. Cheetham, general manager of .the Belle plant, that upon receiving approval of the Plan in Wilming- ton, he was to telephone the Belle plant to determine whether or not the Plan had been approved by a second vote of the Works Council, to be held on March 13. If the messenger then learned that the Plan was so approved, he was to take it to Philadelphia to be printed. Cheetham admitted that he had never before sent, any printing jobs to Philadelphia by special messenger and explained that the council- men had requested him to have the printed plan ready in time for the meeting scheduled to be held on March 15, described below. Cheet- ham's interpretation of the haste surrounding the change is amplified by C. H. Doherty, an appointed representative of the Works Council and assistant general manager of the Belle plant," who concluded "that they (the Councilmen) wanted this plan here to strengthen the type of local organization as a competitor for other organizations," referring to the U. M. W.-C. I. 0. James H. Kelly, a former Works and Employees Councilman who subsequently became president of ACE, was also of the opinion that the extreme haste in attempting to revamp the Works Council "was occasioned by the allegation (in the U. M. W. handbills) that the Works Council was illegal and we desired to have something that would be legal, so that we could offer it to the men at the same time the C. I. 0. were offering them their. organization." T 9 Doherty replaced Cheetham as general manager August 18, 1937, when Cheetham was promoted to the Wilmington office. ° The true purpose of the change to the Employees ' Council is apparent in a letter written by a Council committee subsequent to its formation , as follows : A Mass Meeting was held at which about 80% of the employees attended . At this meeting the elected councilmen made talks , explaining the new . plan and compared the new proposed plan with the plan we were Working under at . that time (Em- 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employees' Council Plan was first introduced to the employees at a mass meeting held in the plant on March 15.8 This mass meeting previously had been scheduled for the exclusive purpose of launching a Community Chest drive, but the management later gave its per- mission to the councilmen to.present the Plan to the employees at the meeting. The respondent also gave its permission to distribute to the employees, as they left the plant on March 15, a "list of privileges" listing the benefits secured by the employees under the Works Council Plan and indicating that these benefits could be continued under the successor Employees' Council Plan.9 The "list of privileges" noted the vacations, pensions, life insurance, hospital service, and other bene- fits given to the employees. In addition it stated that the employees under the Works Council had "a labor body fully and effectively representing the men on [sic] the plant." An attached statement .signed by Toney, as chairman of the Works Council, concluded as follows : Tonight, as you leave at quitting time, you will be given a copy of a new plan of representation which has the full support and is recommended to you by. the elected members of the Council; and also a pamphlet listing the privileges that have been mentioned. Men, we 'ask you to take these home, study' them in quiet and comfort, and TALK IT OVER WITH YOUR WIFE OR FAM- ILY, BECAUSE, AFTER ALL, AREN'T THEY JUST AS VITALLY CONCERNED IN THIS AS YOU ARE? TAKE IT HOME WE SAY!. FORGET WHAT THE C. I. O. HAS SAID, FORGET WHAT WE HAVE SAID. Study this plan and see if any union can offer - you more, and come out here to-morrow or the next day and vote as you think fit, and not as some spell binder would- have you believe you think. Study the new plan carefully, see if you don't agree with your Council that it will give you a closer and better contact with the Management. THESE RIGHTS AND PRIVILEGES ARE ENJOYED WITHOUT THE PAYMENT OF ANY DUES' OR ASSESS MENTS, OR WITH THE LOSS OF INCOME DUE TO STRIKES, OVER WHICH YOU HAVE NO CONTROL, AND IN WHICH YOU MAY NOT BE DIRECTLY CON- CERNED. ployes' Representation Plan). Also it was indirectly shown that the new plan. would be lawful under the Wagner Labor Act. It was also shown that it was a voting issue between the C. I. 0. and our plant organization. s The printed plan was distributed after the mass meeting. 9 Doherty , as a councilman, voted for the resolution to request permission and, as assistant manager, granted the request to distribute the "list of privileges." E. I. DU PONT DE NEMOURS & COMPANY 927 Prior to distribution, the "list of privileges" and the above state- ment were read in a Works Council meeting in the -presence of Doherty and other management representatives. During the presen- tation of the Employees' Council Plan at the mass meeting several of the councilmen made violent attacks on the C. I. 0., condemning it as a radical and communistic organization from which the employees could derive no benefit."' Harry Miller, assistant superintendent in charge of the plant area in which the meeting was held,'and numerous other.supervisory officials were present at the meeting. - In the Hyper News of April 1, 1937, the respondent gave full publicity to the pro- ceedings and reprinted all the material portions of the "list of privi- leges" deleting therefrom only the reference to the C. I. O. The -article concluded by quoting Toney to the following effect : You study the new Plan carefully, and see if you don't agree with your Council that it will give you a closer-and better con- tact with the Management. On March 15 a notice was posted informing the employees that the Employees' Council Plan would be submitted for ratification on March 16, 17, and 18; that upon ratification it would replace the Works Council , but that the elected representatives of the Works Council would continue to act as councilmen until the annual election in April 1937. The notice further stated that if the Plan was not rati- fied by a majority of all employees voting, the Works Council Plan would remain in force. The balloting took place on company time and property with the assistance of supervisory officials,, who 'in many instances urged the employees to vote for ratification of the Employees' Council Plan. The Plan was ratified by a large major- ity.11 It did not become effective, however, upon the ratification of the employees, but required the ratification of the respondent, which was granted on. March 20. Contemporaneously, with the efforts .to revamp the Works Council as. a means of combatting the U. M. W. the. respondent granted the employees a substantial wage increase. A general increase of 10 per cent first was requested on March 10, 1937, by, the Works Council, with Doherty and the other, management representatives participat- ing.12 The next day the U. M. W. organizational' drive was an- nounced in the newspaper, and the respondent forthwith announced 30A similar attack was made about the same time by Assistant Fqreman Edgar J. Mays, who told Rollie I. Lewis,' an employee, "If the CIO happened to get in du Pont the employees would lose a good thing. He said in-all probability they would lose their vacations with pay and other benefits they were receiving." Mays did not deny this. u Doherty- stated at the hearing that he regarded the favorable vote as showing "uni- fication of forces" in the plant. is Cheetham testified that while he frequently suggested to works Councilmen that cer- tain proposals be made, he could not recall whether he had suggested the wage increase. He would not-deny having done so, however.. 928, DECISIONS OF NATIONAL LABOR RELATIONS BOARD an increase, not of 10 per cent, but of approximately 12.2 per cent, effective March 16, 1937. On the same day, the Works Council voted to accept the wage increase. The size of the increase, the precipitate manner in which it was rushed through, and its coincidence with commencement of the U. M. W. drive, all strongly indicate that the respondent was moti- vated in granting the increase by a desire to hinder U. M. W. organi- zational efforts among its employees. The respondent, introduced evi- dence, however, to show that it had been conducting a cost of living survey to determine the adequacy of the existing wage scale and, if inadequate, the extent of the increase necessary. The respondent also showed that similar increases had been granted in other du Pont plants. The chart submitted, however, reveals that only 5 plants out of approximately 50 granted increases prior to the effective date of the increase at the Belle plant and that all the others were made in the latter part of March. It appears further that the greatest increase given at any., du Pont plant in the country was that given at the Belle plant. Cheetham admitted that ratification of a general wage in-, crease usually involved, approximately a month's consideration from the time it was first proposed; that ratification of a wage increase in one day was extraordinary;`and that such speed was probably achieved through his calling Wilmington directly for authority to grant the increase. Cheetham knew of the contemplated U. M. W. drive at the time he called Wilmington and recalled mentioning the drive while requesting the increase. The publicity given the wage increase throws some light on the respondent's motives in conferring it. In the April 1 issue of Hyper News it was reported that the wage increase had been granted upon the request of the Employees' Council.13 As noted below, the Em- ployees' Council did not actually come into existence until March 22. It is clear that the wage increase cannot be fairly attributed to any independent efforts by the Works Council, a company-dominated or- ganization, nor could it be attributed to the Employees' Council since the latter organization was not yet in existence. We are satisfied, therefore, that the respondent's act of attributing the increase to the Employees' Council at a time when it was waging. a campaign against the U. M. ti'4r. constituted. valuable support to the Employees' Council and that this support was designed to influence the forthcoming balloting of March 16, 17, and 18. 11 1s The notices posted on the bulletin board by the respondent credited the wage increase to the works Council. 14 The device of according contractual benefits to a company-dominated labor organiza- tion to head off a competing organization was noted by the court in National Labor Re- lations Board V. American Potash & Chemical Corp., 98 F. (2d) 488 (C. C. A. 9), cert. denied 306 U. S. 643, enf'g Matter of American Potash & Chemical Corporation and Borax & Potash Workers' Union No. 20181, 3 N. L. R. B. 140. E. I. DU PONT DE NEMOURS & COMPANY. 929 ` The Works Council convened in the conference room for the last time on March 22. Upon adjourning at 10: 15 a. m. on that day, the appointed management representatives retired, whereupon the nine elected Works Council representatives immediately converted in the same room for the first meeting of the Employees' Council 15 These representatives continued to serve until_ the. election of their succes- sors in April. Prior to the election a notice signed by Toney, as chairman of the Council, was posted on the respondent's bulletin boards, urging the reelection of the incumbents as men who had been ."tried." 16 Eight of the nine former Works Council representatives were reelected as councilmen on the Employees' Council. Tlre. Employees' Council continued to hold meetings in the confer- ence room provided by the respondent. The respondent continued to ditto the minutes of all the meetings and to post them on the bulletin boards in the plant. The practice of furnishing a secretary paid by the respondent was continued and councilmen were paid for the time spent on Employees' Council business-" The chairman of the Em- is The minute book of the Employees' Council contains the minutes of the Works Council meetings of March 20 and 22 and subsequent minutes reveal that matters initiated in the Works Council are referred to as "old business" in the Employees' Council minutes. 16 Toney's notice follows : KNOW YOUR MAN! in a few days the employees of the Belle works Plant will be voting for nomination and election of the councilmen for the coming year. The men, who will be selected. will have a great responsibility to carry on the duties of the Council for the best interests of each worker in the plant. I desire to bring to the attention of each man, the need for serious consideration in order to select the best man in each voting division.. We have the right to vote for men we can contact every day and talk over group or individual problems. We want these problems settled without outside interference or loss of time; we want men who. know our problems, because our problems are their problems ; and we want men who are on the job and working with or for us every day. Now, in the coming election let us know the man for whom we are voting. Don't. vote for any man unless you know that he stands for those principles that are best for you and your fellow man. If you have a man who has been tried by a term on the Council and has served you well, return' him to the Council with your vote. The following,is a list of privileges that our present Council has accomplished in the past year: 1. At least equal wages with any other organization or plant in the valley. 2. A TWO WEEKS' VACATION WITH PAY (10 days). 3. A NOTICE Or LAY OFF, (one week with pay, not necessary to work). (Over one year consideration-is given to length of service and number of dependents in family, this is local policy.) 1. The payment of time and half for over time (this request is now granted and- method of application in the hands of a committee). 3. Two General Plant Wage Increases in the past year. Now, let us all vote as good citizens and vote for the men who believe in biir Employees' Council Plan. Above all, know your man and the things he stands for and how those things will effect you as a working man at the Belle Plant. (s) S. J. ToNEY, S. J. Toney, Chairman Employees' Council. 17 The respondent charged $4,619 to special account "ODD5G" for this purpose during the period from January through August 1937. 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees'. Council was "empowered to appoint necessary committees" and instructed "to be guided by our past representation -plan." Su- pervisory officials appointed by the respondent served on numerous committees as "associate members." The close resemblance borne by the Employees' Council Plan to the Works Council plan, the identity of officials, and the similarity of names, inevitably caused confusion among the employees, who frequently referred to the Employees' Council as the Works Council or used the term, "Council" to refer to either one 1' Shortly after the formation of the Employees', Council, members of the Council began to wonder anew about the legality of their most recent Plan. Since the Act was regarded as having "become more effective" by virtue of the Decisions of the Supreme Court of the United States on April 12, 1937,1s the councilmen thought that per- haps the mere withdrawal of management-appointed representatives was insufficient to purge the Council of the outward manifestations of its subservience to the respondent. Individually and in groups they frequently asked Cheethaln and Doherty for their opinions as to the legality of the Plan. Cheetharil,. in turn, consulted the Service Department in Wilmington, on three or four occasions, with no ap- parent result. The individual and group questioning recurred with such frequency that Cheetham called a meeting of the nine council- men in June of 1937 20 to discuss the legality of the Employees' Coun- cil Plan. He then advised them that he had communicated with a Mr. Sedgwick of the Service Department in Wilmington and had been informed that the Legal Department was investigating the problem but that certain cases were then pending 21 and, upon de- termination of those cases, they might be in a position to better advise the councilmen as to the legality of their Plan. Cheetham assured them, however, that "he, as manager of the Belle Plant, was perfectly willing to-carry on and recognize the Employees' Council as 'the bar- gaining agent for the Belle Works employees until such time as something more definite could be obtained." . I Relying upon Cheetham's assurance and feeling that his failure to state that the organization was "illegal" indicated that it must there- fore be "legal," the Council continued to operate as the bargaining v It is interesting to note. that witnesses as well as counsel confused the names throughout the hearing. 1e Inter' alia, in the case of National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, rev'g 83 F. (2d) 998 (C. C. A. 5) and aff'g Matter of Jones & Laughlin Steel Corporation and Amalgamated Association of Iron, Steel & Tin Workers of North America, 1 N. L. R. B. 503. 20 Both Rohrig, and Brilea testified that this meeting occurred in August, while the respondent's and other witnesses placed it in June. We resolve the conflict in favor of the respondent. We believe that the date is relatively unimportant, however, as this meeting is significant only as an indicium of the Council's subservience to the respondent. 21 The record does not disclose the names of the cases referred to. E. I. DU PONT DE NEMOURS & COMPANY 931 representative of the employees at the Belle works. The Council's attitude at this time was expressed, shortly after the conference with Cheetham, through a committee of, four of its members, which com municated with one of the councils at another du Pont plant, as follows We are going to furnish you with all the details regarding the selection and approval of our present Employes' Council Plan which is now in effect at the Belle Works and which we have been advised meets the approval of the Wagner Labor Act. Despite their outward manifestation of confidence in the legality of the Employees' Council Plan, the councilmen apparently still were not fully convinced that their activities. -were "legal." They mean- while studied the plans of other du Pont councils and other un- affiliated organizations at their meetings in an effort to dispel their uncertainty. They also continued to question'Cheetham and Doherty to determine whether or not there was any further information on the matter from Wilmington.22 During this period of uncertainty, the respondent tendered a ban- quet to the incoming and outgoing representatives on the Employees' Council on June 11, 1937, which was described in the Hyper News as follows : Filling the ballroom to capacity and overflowing into the mez- zanine were over three hundred Belle Works Employees. This group consisted of the entire supervisory force and members of the Council for 1936 and 1937.23 A well known local orchestra furnished music during the din- ner and immediately upon its conclusion Mr. J. L. E. Cheetham, Plant Manager, introduced, amidst much applause the various members of the Employes' Council. While harboring their doubts as to the legality of the Employees' Council, the councilmen nevertheless decided in July 1937 that there should be a general registration of all employees in the Employees' Council in order to have more concrete evidence of membership. Tables were set up for this purpose in the machine shop. The coun- cilmen took time off from their duties as employees and devoted three entire days to rounding up the other employees for registration. 22 Although the councilmen felt uncertain in their own minds they. apparently. concealed it from the. employees whom they represented for, as asserted by Cheetham, all of the questions regarding the legality of the Plan came from the councilmen and not from the employees. 23 The only non-supervisory employees present were the councilmen . Although the number of councilmen present is not stated, it would appear that only 10 of the more than 300 'persons gathered were councilmen, for' as noted above; 8 of the 9 former coun- cilmen were reelected in April. 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD They. were assisted in this by numerous supervisory officials, who on a number of occasions told the men to go out and "sign up", for the Council. Thus Ralph Ewer, a foreman, stated:. If you boys' believe in this I would like for you to do a little electioneering. We don't want the damned C. I. O. in here. '' We 'have seen what it is.doing in other States.24 In order to avoid omission of any possible registrant the following notice was posted on the respondent's bulletin boards: NOTICE THE COUNCIL OFFICE WILL REMAIN OPEN ALL DAY TUESDAY AND WEDNESDAY, JULY 20 AND 21, AND BETWEEN THE HOURS OF 11:00 A. M. TO 1:00 P. M. AND 3: 30 P. M. TO 4: 30 P. M. DAILY THERE- AFTER FOR THE PURPOSE OF REGISTERING AS MEMBERS OF THE EMPLOYEES' COUNCIL PLAN ANY EMPLOYEES NOT PREVIOUSLY CONTACTED. FOR ANY INFORMATION ON THIS SUBJECT CONTACT ANY MEMBER OF THE COUNCIL OR CALL AT THE COUNCIL OFFICE. (SIGNED ) • S. J. TONEY. C. The formation. of ACE Shortly after the registration of the employees for the Employees' Council, a charge . was filed with the Board by the U. M. W. to the effect that the respondent was dominating, interfering with, and lending support to the Employees' Council. During an investigation of the charge, Ronald D. Stevenson,25 a Field Examiner of the Board,. conferred with Toney, the president of the Employees' Council. He advised Toney that since meetings were held on company time and property and the expenses, of the Council were being paid by the respondent, it appeared that the Employees' Council Plan was main- tained in violation of the Act. Toney, before reporting the result of this conference to the Employees' Council, immediately went to consult with Doherty. He advised Doherty of Stevenson's statement to the effect that the Employees' Council Plan was illegal and asked what they could -do. Doherty advised Toney, "I can 'give you no advice as I told you when we gave you these copies of the law.26 I can't interpret the law nor can I give any information or advice on the Employees' Council Plan. If you men need an attorney you will have to get one." Two or three days later Doherty met with Oliver H. Rohrig and George A. Hickman, two other councilmen, and reiterated' his advice to Toney that they consult an attorney.97 24 Ewer did not appear at the hearing to deny having made this statement , testified to by Albert Scragg, an employee. ' Incorrectly designated in the transcript as Stephens and Stephenson. 26 Doherty gave copies of the Act to the Councilmen in the latter part of May or early June. ' Doherty testified that from these conversations and 2 or 3 others that he had with Employees' Councilmen, he gathered that the Councilmen "were concerned with the legal- ity of the plan that they had and they appeared to me as a group of men trying to find the way to make when ( what ) they had legal". . E. I. DU PONT DE NEMOURS & COMPANY 1 933 At a special meeting of the Employees' Council on August 16, 1937, called for that purpose, Rohrig reported the results of Toney's con- ferences with Stevenson and Doherty. A resolution then was adopted that a committee be appointed "to revise the Employees' Council Plan, to, gather any other information necessary to bring the plan into con- formity with the Wagner Labor Act." Pursuant to the resolution a committee .of three members was appointed consisting of Rohrig, J. H. Kelly, and Hickman, with Toney participating as an ex officio member. Following Doherty's advice, the committee left the plant .the next- day, during working hours and while being paid by the re- spondent, to consult with M. E. Boiarsky, an attorney. Boiarsky ad- vised them that since they were in his office on company time he could not discuss the formation of a new organization. He further advised them that he could not consult with them as a committee of an organ- ization which previously had been company sponsored. He stated, however, that he would be willing to consult with them as individuals desiring to form a new organization provided they came on their own time. The committee reported the results of the conference with Boiarsky at another special meeting of the Council on August 18. This meet- ing, which lasted all clay, was held in the conference room provided by the respondent and while the councilmen were being paid by the respondent. At this meeting the .Deep Water Industries and Fabri- cord Council Plans 28 for collective bargaining were discussed and a resolution was adopted that they both be turned over to the committee designated to revise the Employees' Council Plan. A resolution was then adopted. That the Committee appointed to revise the Council Plan be instructed to continue with its work of revising the Plan and if the members of the Committee deem it necessary to have legal counsel, that they be empowered to secure same, and that the membership on the Committee be increased to four' with W. M. Briles being the 4th member. Following the advice of Boiarsky the Council passed the following resolution : Be it resolved that all meetings of the Council and of the Committee pertaining to the revision of the Employees' Council Plan be held outside of working hours and off of the company property. That same night seven of the councilmen met in Boiarsky's office, where he reviewed for them the pitfalls to be avoided in the forma- ' These plans were in force in other du Pont plants. 283035-42-vol. 24-60 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of a new organization and advised them that it might be wise to have some "new faces" as leaders in the "new" organization. He reiterated his refusal to work with them as a committee. of the Employees' Council whereupon, according to Hickman: somebody says, "Well, why don't the four fellows that were supposed to revise the plan just go ahead and work here with you." Kelly, who subsequently became president of ACE, amplified this de- scription of the proceedings, and stated that "the group that night agreed to work with Mr. Boiarsky along the lines that he had out- lined and also inasmuch as the majority of the council members were there, they agreed that this same committee would carry on as a -group of individuals." Kelly's confusion was apparent when ques- tioned gas to whether he was present in Boiarsky's office on August 18 in the capacity of Council member or of an organizer of a "new" organization. He stated : I don't know what I .was acting as. That will just about tell you the truth. We had to make that decision or Mr.. Boiarsky would not work with us. That decision was made there that night. Now, if you can show me or get somebody to show lne when I can differentiate between when I am a councilman and when I am a human being or anything else, maybe I can give the answer.29 Following the conference at Boiarsky's office the revision commit- tee met at the Malden High School on the nights of August 25 and 26 to consider various additional proposals for revision of the Em- ployees' Council Plan. By the end of the meeting on August 26 the ``new" Plan was virtually complete. On the morning of August 31 the members of the Employees' Council were called to Cheetham's office. . There Chee'tham, in the presence of Doherty and R. N. Evans, assistant general manager, announced that he had conferred with Regional Director Phillips and had agreed with Phillips to cease recognition of, the Employees' Council Plan. Cheetham advised the councilmen that "although we were not questioning the legality of the Employees' Council, still we thought that we should comply with Mr. Phillips' request." He "Disregarding Boiarsky's advice the Employees' Councilmen limited the responsibilities of shaping the "new organization" to the same group which had acted in respondent's interest in the operation of the two previous councils. This is illustrated in Hickman's reply to Board Counsel Gordon's question as to the functions of these men. Hickman considered it new duty for the same individuals that had been working on the plan for those duties they were working on as a committee, appointed from the Em- ployees' Council. You must remember, Mr. Gordon, that there was only nine men and there wasn't very many to select a committee of five from. [Italics added.] E. I. DU PONT DE NEMOURS & COMPANY . 935 further advised them that they could have the remainder of'the day .to settle the' affairs of the Employees' Council during which they would receive their regular pay, but that after that they.-must return to work. After Cheetham had finished, Rohrig informed him. that a new organization was being formed.30 In accordance with its agreement with Regional Director Phillips, and in conjunction with . Cheetham's conference with the Council members, the respondent posted the following notice on August 31: NOTICE To EMPLOYEES ' The Director of the Regional Labor Relations Board at Cin- cinnati, after investigation, has informally 'advised the Man- agement that the Belle Plant Works Council does not meet the requirements of the National Labor Relations Act (Wagner Act) as a collective bargaining agency of the employees of the Belle Works. For example, the Council, as it is now constituted, has been meeting on Company property and on Company time, which may be construed as Company assistance, and hence contrary to the Act. In,order that it may comply with the suggestion of the Re- gional Director, the Management is therefore unable to permit further meetings of the Belle Plant Works Council on Company property and on Company time, or to bargain collectively with it in the future. However, in accordance with its long established policy and as required by the Act, the Management will continue to receive and adjust grievances presented by any individual employee or ,any group of employees, and no employee will suffer any loss of time or pay while conferring with the. Management in such cases.31 C. H. DOHERTY, Jr., Manager. After the Employees' Councilmen left Cheetham's office, Cheethain advised Doherty, and Evans, of the company's future policy as ex- 31 Cheetham denied that he was told of a new organization on this occasion . On cross- -examination , however , he was confronted with his notebook in which he and Doherty In collaboration had dictated notes relating to this conference . The notebook stated "Rohrig, one of the councilmen , asked how they could now proceed to organize a new Plan under the law. I told him to read the -Wagner Act and that I could give him no advice." In view of this entry.. in Cheetham's own notebook, we find that the plan to form a "new" organization was mentioned in the conference. a' It was stipulated at the hearing , that wherever "Works Council " appeared in the notice Employees ' Council was intended . It Is significant, however, that the substantial identity between the Works and Employees' Councils carried over even to this important ..notice published five months after the change in name. In addition to the above notice, the respondent posted Sections 7 and 8 of the Act and stated it would not discriminate , against any employee by reason , of union membership. .936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pressed in the posted notices and instructed them to pass the word down the line to all supervisory officials, including assistant fore- men and subforemen, to refrain from giving any indication of par- tiality toward any labor organization and to refrain from.-any expression of opinion with respect to union matters. The respondent, in addition to posting the above notice, published it in the Hyper News of September. 1. Immediately following this ,notice as it appeared, in the News, and without any intervening space or subhead, the forthcoming "new" organization was hinted, as follows : S. J. Toney, President of the former Council, when asked what future plans were being considered, stated that a com- mittee had been appointed by the Council, at their last meeting, for this particular purpose. He stated, however, that at present he had nothing definite to report. Immediately following the conference in Cheetham's office the Employees' Councilmen retired to their conference room to deter- mine their future, course of action. They then prepared a letter to the respondent requesting that they, as individuals, be recognized as exclusive bargaining representative for the respondent's employees until a new collective bargaining agency would be forthcoming.32 The letter stated : AUGUST 31, 1937. C. IT. DoHERTY, Jr., Manager,. Belle Works. Effective this date,. the Employees' Council for Belle Works of the E. I. du Pont de Nemours & Company was terminated and I, as former chairman of the Employees' Council, ask that W. M. Briles, G. B. Davis, G. A. Hickman, F. D. Jones, J. H. Kelly, J. 0. McClung, 0. H. Rohrig, I. A. Taylor and myself act as sole collective bargaining agent for the Chemical Workers of Belle Works of the' E. I. du Pont de Nemours until such time as a bar- gaining agreement forthcoming from a new collective bargaining agent duly organized within the National Labor Relations Act do present such bargaining agreement to represent the employees of the said company. Respectfully, (s) S. J. TONEY, S. J. Toney, President.33 32 Some of the councilmen at this time questioned the power of the respond,nt to dis- establish the Council , asserting that they had been elected in April for a term of 1 year to represent the employees and that, in view of the fact that only 4 or 5 months had expired, they should continue to represent those employees. The record does not disclose the• organization for which Toney purported to act as president. [Italics added.) E. I. DU PONT DE NEMOURS & COMPANY 937 The letter was delivered to Doherty during the afternoon of August' 31 by Toney. Doherty refused to grant the request for recognition, however, on the ground that 'there had not been sufficient lapse of time . since the withdrawal of recognition from the Council for the employees actually to have designated the erstwhile Council leaders as their representatives. The minutes of the Council . meeting of August 31 were taken by the secretary in the usual planner and were dittoed in the same form as minutes of previous Council meetings. , The minutes of the meet- ing reveal that a committee was formed to . select a meeting place and to set a time for a meeting of the, members of the Employees ' Council and other employees of the du Pont plant for the purpose of discussing this decision and to take what action is necessary for the changing or formation of a Plan that will comply with the National Labor Relations Act. The minutes further show that a . resolution was adopted "that dur- ing the period of reorganization [italics added] that the members of the Standing Committee as of the Employees ' Council to function and carry on the duties necessary." Upon the adjournment of the meeting, the revision committee of the Council ,held a meeting at the Malden_ High School to complete the "new" Plan, which had been nearly perfected at the meeting on August 26. The next day Kelly and Rohrig left work to undertake a final revision and polishing of the Plan in Boia.rsky's office. Boiarsky then arranged fora meeting of proponents of the organi- zation to be held on the night of September 2 in the Ruffner Hotel ini Charleston and suggested that each of the nine councilmen invite six to eight employees from his department . This was done: The ensuing meeting, of approximately 50 employees , was called to order by Rohrig, who explained that the purpose of the meeting was' "to present to the employees a new Plan for the organization of the representatives of the employees to take the place of the Em= ployees' Council Plan recently declared illegal by the National Labor Board Regional Director of Cincinnati ." Boiarsky then discussed certain legal aspects of forming an organization . The constitu- tion and bylaws, previously prepared by the Council members, were then read and considered by the assembly. After minor changes were made the 'constitution and bylaws were adopted and all per- sons signing the membership list at the meeting became charter members Of ACE. A temporary executive committee of nine men, six of whom were members of the Employees' Council, were selected 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to act as officers during the ensuing 30-day period, until permanent officers could be elected.34 The. constitution and bylaws of ACE, as adopted at the Ruffner Hotel meeting, closely resembled the terms of the Employees' Colin- cil Plan. They limited membership in ACE to employees of the respondent and, like the Employees' Council Plan, provided that the representatives, of the new association should be elected from the nine departments into which the respondent's business was divided- They further provided that the affairs of ACE.should be directed by an executive committee of nine members to be elected by the mein- hers in each department. Just before the Ruffner Hotel meeting, Rohrig; who had been active in all three organizations, consulted with M. A. Boulden,. his superintendent and a former management representative -on the Works Council, to obtain assistance in selecting suitable persons to attend the Ruffner Hotel meeting. Shortly after the meeting Rohrig again asked Boulden to assist him in selecting a "successor" to himself, since he had decided not to run for office in ACE. In making these selections of suitable employees for positions of lead- ership in ACE,.,, ccording to Rohrig, he and Boulden used confi- dential employee lists kept in Boulden's office. Boulden and three clerks in his office denied ever - giving Rohrig these confidential lists, asserting that a list of employees was kept on the bulletin board and that no one except supervisory officials had access to the con- fidential lists, which contain wage rates of all employees a-nd are more current than the posted lists. _ Mark Farren, an ordained minister and a member of the ACE executive committee, testified that after his election as a member of the executive committee of ACE, in the place of Rohrig,35 he accompanied Rohrig to Boulden's office and secured a list of employees which they went over together to select prospective members for ACE. The Trial Examiner found that Rohrig was not a credible witness and that he did not have access to the lists. The corroborating evidence of Farren was dis- regarded by the Trial Examiner on the ground that Farren was unable to identify the clerk who gave him the list. As noted below, the Trial Examiner did not in a number of instances exercise due care in weighing the testimony of various witnesses.36 Under a' That the Councilmen 's self-assurance of receiving recognition was not dissipated by Doherty's refusal to, grant the request therefor contained in Toney 's letter of August 31 is apparent from the following resolution adopted at the Ruffner Hotel meeting : Be it resolved that the Association of Chemical Employees ' at the Belle plant of E. I. du Pont de Nemours & Company shall act as the sole collective bargaining agent for the members at this meeting and for all other members hereinafter with the management, and hours of work , wages , and other matters of mutual interest. Farren was elected to succeed Rohrig on September 25. - 3e In several instances the Trial Examiner failed to find certain facts testified to on the ground that denials of the testimony in question were credible . In point of fact no such denials, relied on by the Trial Examiner, appear in the record. See footnote 43, below. E. I. DU PONT DE NEMOURS & COMPANY 939 the circumstances and upon the basis of the entire record we do not agree with the Trial Examiner that Rohrig's testimony cannot be relied upon." In this instance his testimony that he had access to the employee . lists is corroborated by a member of the clergy testifying against the interests of his own organization, ACE. The mere fact that Farren was unable to identify a . particular clerk 2 years after the incident is of little weight. We find that Rohrig did have access to the confidential lists of employees and that he was assisted by Boulden in selecting suitable persons to attend the Ruffner 3 A substantial portion of the respondent's testimony was directed toward discrediting Rohrig and the Trial Examiner asserted that "the testimony of Oliver Robrig is of prime importance in this case." We cannot agree with this view of the case. There is ample testimony in the.record to support the findings herein even if the testimony of Rohrig is completely disregarded. Rohrig's testimony is important by way of corroboration, however, and therefore. merits detailed analysis. To justify his conclusion that Rohrig was not a credible witness the Trial Examiner relies upon a purported contradiction in Rohrig's testimony wherein he allegedly admitted and shortly thereafter denied deceiving his "lieutenants" in connection with the formation of ACE. This interpretation of the evi- dence is somewhat confusing. Rohrig was consistent in admitting -his attempts to de- ceive his "lieutenants" ; his denial was directed only at the charge of inducing his lieu- tenants to deceive the employees. We do not believe that Rohrig's admitted deceit of his "lieutenants" impeaches his credibility to any substantial degree. As explained by Rohrig, "it was my business to sell that organization." Rohrig, when asked, "Why you instructed the lieutenants in the manner that you did," answered Well, briefly it is just this : The men accused us of having-of giving them the same thing as they had in the Employes' Council and the Works Council. Any number of them said : "It is the same organization and you can't fool the men because the same old gang is on it," and in order to make those men feel like-that that organization we were setting up in the form of the ACE would be more or less a bona fide organization, it was absolutely necessary to resort to every conceivable means to try to deceive them and get them to sign men in that organization. The'Trial Examiner cites as another contradiction in Rohrig's testimony the fact that he admitted instructing his "lieutenant" Elder not to solicit on company time and property. Robrig explained his action as follows : First I told Mr. Elder. that we would not get them on, the plant and then later on I banded down orders to get them anywhere they could. Now, Mr. Elder is a very fine gentleman hnd be was a little shy. He was a little suspicious and he come to me and he-he-he wanted to know again about this here organization. He said : "There is Toney and there is Kelly and there is Hickman and there is Grady Davis, and there you are, the same gang. Now, you have told me that that thing- you have told me that this organization was not company dominated." Now, he said: "I want-I want another explanation on that," and I said : Don't get, them on the property-don't get them on the company property. I had to tell him that again. I had to sell him the idea again. I said: Keep yourself covered up and don't get-don't sign the men.. on the company property. • Now, I done that several times with may be one or two of the other lieutenants. and it was my business to sell that organization, Mr. Ritchie. The record is abundant with testimony to the effect that various representatives of ACE solicited on company time and property without being reprimanded therefor. Under these circumstances it is improbable that Rohrig feared that his lieutenants would be punished for such open solicitation. It would seem more logical, as explained by Robrig, that his instructions were induced by a desire to influence men whom he con- sidered competent but reluctant to work for an organization which they knew to be company dominated. Rohrig, as the second witness testifying in this proceeding, was on the stand for 4 days. Without any opportunity to listen to. any other witness but the one testifying before him, his recollection of details, names, places, and dates occurring 2 years pre- .940 DECISIONS.OF NATIONAL LABOR RELATIONS BOARD 8 Hotel meeting and in selecting his successor. Following the Ruffner Hotel meeting ACE promoted an intensive campaign to enlist members and to arouse interest in a mass meeting which was held in the Armory in Charleston on September 25. James H. Kulliney,, who was known to the ACE election committee as a former president and general chairman of an unaffiliated labor organization of the Norfolk & Western Railway, "that was what is now called or referred to as the company union," was appointed to act as chairman of. the Armory meeting. The Armory was divided into nine areas following the lines of the nine departments in the Belle plant, and the several hundred em- ployees who attended the meeting reported to their respective divisions: Each section voted for a member of the executive committee and six of the previous Employees' Councilmen were returned to office. Two of the three replaced councilmen, Rohrig and Briles, did not seek re-election. As for Kelley, he advised his constituents not to re-elect him as he "felt it would be better for all parties concerned if. we had. some new blood in the executive committee." The transfusion did riot .take place, however, and the "old blood" was returned to office. During the Armory meeting the constitution and bylaws of ACE, as adopted at the. Ruffner Hotel meeting, were explained to the em- ployees. No opportunity to vote thereon was given them and their sole active participation in the meeting was to elect the members of the executive committee. Since the Armory meeting there has been no general membership meeting of ACE.- Despite the respondent's assurances of neutrality posted on its bulletin boards, many of the supervisory officials did not appear to take these statements seriously. Instead they continued to disparage ' the U. M. W. and encouraged membership in ACE. On various occasions Edgar J. Mays, an assistant foreman, told Rohrig, Howard Stanley, Tom White, and several. other employees, "I am afraid if the vious to the hearing was good . He was corroborated in many instances as to inci- dents which we find to have taken place and as to others which we deem it unnecessary to find . In one of the most contested incidents , the August 31 meeting in Cheetham's office, Rohrig's testimony that a new organization (ACE) was mentioned is corroborated by the notation in Cheetham's own notebook. Rohrig's testimony that Doherty advised him and Hickman to consult an attorney is corroborated by Doherty 's own admission. His description of the events leading up to the mass meeting of March 15 and its anti- C. I. O. nature is corroborated by numerous witnesses both of the Board and of the respondent.' 'OTestimony was adduced to show that Rohrig asked Murray Hackney , an employee, if he would be amenable to selection as Rohrig's successor on the executive committee, and that Rohrig also discussed Farren's availability for this purpose with James B. Elder, another employee. This evidence does not negative the possibility or the probability that Rohrig discussed the same subject with Boulden. In fact, Rohrig's alleged proclivity to predetermine his successor would indicate that a greater likelihood existed for his dis- cussing the problem with all persons whom he considered to be interested. That Rohrig considered Boulden interested , there can be little doubt. '9 An election of officers was held in October 1933 in the ACE office where employees merely came in to vote . No meetings have been held wherein employees could partici- pate or express their desires except through the executive committee members. . . E. I. DU PONT DE NEMOURS & COMPANY 941 C. I. O. comes in here, that we will lose our vacation ' and- our sick, benefits." Bradley, another foreman, advised several employees to the same effect, after the Ruffner Hotel meeting and during ACE's most active organizational period. After the formation of ACE, Mays told several employees "it would be a good order to join."' Foreman Stine in November 1937 stated "the C. I. O. will never come in because the Company doesn't want it." Foreman G. F. Hamrick advised the men on his shift that "ACE was better as a collective bargaining agent than the C. I. 0." - Hamrick on another occasion told Farren "he was opposed to practically any organization" but "he was more in favor of ACE" and stated "the more men we got in the ACE the better chance we had for a collective bargaining agency." On one occasion Hamrick suggested that Farren leave his work to go to the boilerhouse to solicit members for ACE.40 Hamrick admitted allowing Farren to go to the boilerhouse for solicitation purposes, but denied that he was the instigator of this mission. In view of Hamrick's expressions of dislike for the C. I. O. and his partiality for ACE, we find that Hamrick instructed Farren to go to the boilerhouse to solicit members.41 Hamrick on - another occasion told Harmon, a gang pusher, in January 1938 to tell the boys to pay their dues because "this was their organization." Stanley Glass, an employee who overheard this conversation states that the inference was clear that Hamrick was referring to ACE "because I noticed right away some of the members paying their, dues." Glass there- upon went out and paid his dues .41 Pursuing his admitted antagonism toward the U. M. W., Assistant Foreman Mays warned John Stepto, a U. M. W. leader, "Look here, you C.-I. 0., if you don't shut off that blowing off here, I will kick you over the fence." On another occasion after Stepto had made a speech outside the plant during. the noon lunch hour, Mays warned, "You are talking too darn much around here, Stepto.". When Stepto 40 The boilerbouse was known as the U. M. W. stronghold. 41 Hamrick apparently was not the only supervisory official interested in Farren 's activi- ties. After Farren's election as a member of the executive committee of ACE, 'Superin- tendent Boulden congratulated him and stated , "If your organization ever gets any recog- nition or anything like that, I will be glad to work with you." Boulden asserted that he was merely attempting "to, be pleasant" and -would have done the same thing if it had been the C. I. 0. or A. F. of L. No instance of such pleasantry toward the U. M. W. was shown. In view of Boulden's close collaboration with ACE, we are not convinced by his explanation. 'Glass' explanation of the reasons impelling him to join ACE' throws some light on his apparent willingness to pay ACE dues . Glass was taking a "course in mechanical drawing . * * * ' In Kanawha College, a night . course, and if the pressure that they put on me through indirect means, to be plain , to be quiet of what they termed agita- tion , I thought it was the wisest thing for me to join the so-called organization and it might relieve that pressure there some at that particular time, because I actually was up against it and had to have work at those times . * * * I was up against it financially, yes, and couldn't possibly take a chance of losing my job." 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demanded to know'what he meant, Mays answered, "Well, you have been out at the gate and shooting your head off and talking C. I. 0., and are against this other union." Mays explained these statements by asserting that he was "just kidding" and that he frequently "kidded" Stepto as well as Kelly, the ACE leader. In view of Mays' antagonism toward the U. M. W., we do not believe that Mays was merely "kidding" when he made these statements, or that Stepto would reasonably, have understood that Mays was joking.43 More- over, the above-quoted statement of Mays itself indicates his antip- athy toward the U. M. W. and negatives the likelihood of Stepto's accepting it as "kidding." Shortly after the formation of ACE, Shift Engineer 0. H. Boyles distributed the ACE constitution and bylaws to Amos C. Wilson and other employees in his division.44 About the same time Hollie I. Lewis,' an employee, asked C. M.. Carr, his foreman, "how he stood between the C. I. 0. and the ACE, in other words, I said the com- pany union, that is the words I expressed in." Carr replied, "We don't call it the Company union * * * It is the ACE * . * * Lewis, if you want advice from me, I will give you advice and I think you will find it is good. * * * You are one of the best helpers that we have in the gang, and if you want to stay here and hold your job you better go outside of the gate at the noon hour and give them (ACE) 50¢." 45 D. Conclusions with respect to the Works and Employees' Councils The. Works Council was introduced under an Employees Repre- sentation Plan set up by the respondent "to provide a means" for With the exception of the statements attributed to Mays by Stepto , all of the other statements attributed to Mays were admitted by him to have been made seriously and not "kiddingly." The acts attributed to Stine and Bradley and Hamrick 's suggestion to Harmon that the men pay their dues were undenied . The Trial Examiner in his Inter- mediate Report did not mention the Bradley incident and stated that each of the other incidents was denied by the supervisory official to whom it was attributed . He then found that the "denials " were credible. No such denials apppear in the record. We find that the supervisory officials made the remarks or committed the acts attributed to them. 44 Boyles denied that he had engaged in such distribution and asserted that he had never seen the ACE constitution or bylaws until the night before he testified , July 20, 1939. The Trial Examiner credited this denial . The record is abundant with testimony to the effect that ACE literature , including the constitution and bylaws, was widely dis- tributed throughout the plant . We do not believe Boyles ' assertion that he did not see these pamphlets until almost two years after their extensive circulation, to be credible. We find that he engaged in the distribution as alleged by Wilson. " Carr denied that he advised Lewis to pay any dues to ACE and denied further that he had ever discussed ACE with Lewis. The Trial Examiner credited this denial. Carr admitted, however, that he had discussed ACE on various occasions with other people but insisted that, although he was friendly with Lewis and discussed various subjects with him, he never discussed ACE with Lewis. In view of the admitted friendship existing between Carr and Lewis, it seems incredible that a subject of such widespread interest should not be discussed by them. We are, therefore , not persuaded by Cair's denial and find that he advised Lewis to pay dues to ACE. E. I. DU PONT DE. NEMOURS & COMPANY 943 "collective cooperation between the management and its employees". under the recently enacted National Industrial Recovery Act. The employees, however, were granted no voice in determining the form that the collective bargaining agency should assume. Instead they were merely given the "right" to accept or reject the Employees Rep- resentation. Plan already prepared 'and printed by the respondent.- Presented- with a Hobson's choice, the employees "accepted" the Works Council. In addition to being fostered by the respondent, the Works Council was. supplied with financial support and the use of the respondent's facilities for its administration. No provision was made for regular meetings of employees and 'the consequent absence of any opportunity for the interchange of ideas or the formulation of policies by the employees for united presentation to the respondent precluded that form of independent action which is commonly asso- ciated with a free and independent labor organization. With the secure position of the Works Council challenged by the imminent U. M. W. organizational campaign, the respondent realized that the stigma of company unionism attached to the Works Council detracted from its potency as an antidote to the rival U. M. W. drive. The respondent thereupon established the Employees' Council, re- moving the most patent element of company dominations, viz., man- agement-appointed representatives.- Thus at the crucial moment when the entry of the U. M. W. upon the local scene confronted the respondent's employees with the important question of whether the company-dominated and supported Plan was to continue and if so, in what fashion, the respondent rushed to completion a "new legal" Plan, contemporaneously granted a wage increase greater than the one "requested," and credited the Employees' Council with securing it although it had not yet come into existence. At the same time, the respondent allowed the Councilmen to attack the U. M. W. by. public addresses delivered in the plant, accompanied by the "list of privileges" distributed throughout the plant. That employee representatives, who were accustomed to work in close collaboration with the management representatives 4T would make so vigorous an attack on the C. I. 0. in their speeches without the respondent's sanction is highly improbable. In any event, the respondent's disclaimer of responsibility for the mass meeting because. Cheetham, Doherty, and several other major management representa- tives were not present is without. foundation. Doherty was present 46 Although the respondent sought to show that the change to the Employees' Council was an expression of 'the will of the employee representatives themselves , the record does not sustain this contention . The "new" Employees' Council Plan was admittedly prepared by a committee composed of three employee- and three management -appointed representatives. _ 44 As noted above, the Councilmen had accepted veto of their actions by the service department. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the Works Council meetings when the speeches and 'list .of priv- ileges". were discussed and strategy for the drive against the C. I. O. was outlined.. The presence of numerous supervisory officials at the mass meeting in the plant, called by the respondent, inevitably, had a coercive effect upon the employees. This compulsion was then continued when -the respondent bestowed its benediction upon the "list of privileges" accorded the Works Council and upon 'speeches disparaging the U. M. W., by publishing the material portions of both in the Hyper News.48 Knowing that the same persons who had acted as the' respondent's tools in the administration of the Works Council were promoting the Employees' Council, and being fully aware of the respondent's hostility toward the U. M. W., the em- ployees were inevitably sensitive to the respondent's mandate to vote against the U. M. W. It was to be expected, therefore, that the employees when confronted with the limited right to "accept or reject" a modified Works Council appearing in the guise of. an "Employees' Council," in effect reaffirmed their previous' vote in favor of 'the Works Council and "accepted" the Employees' Council Plan.49. Since three management-appointed representatives assisted in drawing the Employees'. Council Plan, the mere withdrawal of such management-appointed representatives and renaming of, the organization, with, the continuation of financial and other support, did not effectually free the Works or Employees' Council of employer domination. We find that the respondent dominated and interfered with the administration of the Works and Employees' Councils and con- tributed financial and other support to them and thereby interfered with, restrained, and coerced its employees in the exercise -of the rights guaranteed in Section 7 of the Act. 48 In this respect , it is significant that as late as August, Kelly and Hickman fre- quently stated in Employees' Council meetings that "they were fighting the C. I. O." and "that were it not for Employees Council that the C. 1. O. would have the Dupont. plant." The respondent objected to the admission in evidence of these statements, urg- ing that they were not imputable to it. The statements were properly admissible, how- ever , as evidence of the intention of the moving parties in the formation of the organiza- tion in question- 49That the conduct of an election by an-employer may preclude the possibility of deter- mining the true wishes of the employees was noted in Matter of The Heller Brothers Company of Neoeomerstown and International Brotherhood of Blacksmiths, Drop Forgers, and Helpers, 7 N. L. R. B. 646, 657: Moreover, we have invariably followed the policy of disregarding the results of elec- tions conducted by employers. Experience has shown that the presence of supervisory employees at the polls , the conduct of the election on the employer 's property, the possibility of hidden identification marks on the ballots , taken -together with prior manifestations of preference for a particular labor organization , preclude the casting of a ballot which registers the free and independent choice of the employee. Al- though in the instant case, the mechanics of the balloting were not impugned, we shall not depart from our usual policy. See also Matter of J. IVi.ss & Sous Company and United Electrical, Radio d Machine Workers of America, 12 N. L. R. B. 601. E. I. DtT PONT DE, NEMOURS & COMPANY 945 E..Conclwions with respect to ACE ACE, like the Employees' Council, was formed by men acting in the interest of the respondent, who sought to disguise a dominated organization so as to retain to the respondent the fruits of its previous unfair labor practices. -Their experience in the Works and Em- ployees' Councils, and particularly the respondent's vigorous cam- paign against the U. M. W., made clear to the councilmen the respondent's real desire for an "inside organization" susceptible to its desires. The councilmen knew, however, that the respondent could no longer openly form or support such an organization. Having previously acted as the respondent's agents in violating, the Act by forming the company-dominated Employees' Council and desiring to retain their own position of favor with the respondent they per- formed the task that the respondent wanted accomplished. The re- spondent, although fully aware of the councilmen's activities, took no action to prevent the further revision of the Works and Em- ployees' Councils to appear as a bona fide labor organization. On the contrary, the respondent gave it aid and -tacit endorsement. As a natural consequence, when the councilmen's activities reached frui- tion in the formation of ACE, the employees recognized it as the handiwork of the councilmen acting at the behest of the respondent. The respondent, hating thus failed to effectively, disavow its unfair labor practices, continued them through ACE. The councilmen's first misgivings about the validity of the Em- ployees' Council Plan arose shortly after its introduction as a revi- sion of the Works Council Plan. Being accustomed to 'a subservient position with respect to the respondent, however, they made no effort to determine for themselves whether or not their concern was well- founded, but -sought advice from Cheetham and Doherty. While refraining from advising the employees in general that maintenance of the Employees' Council may have been in violation 'of' the Act, the respondent frankly admitted this possibility to the councilmen, but assured them that it was "perfectly willing to carry on and rec- ognize the Employees' Council * * * until such time as some- thingmore definite could. be obtained." Thus assured, the. councilmen carried oii until Toney was advised by Field Examiner Stevenson that the Employees' Council was apparently being maintained in violation of the Act: Toney, knowing of the respondent's interest in the mat- ter, forthwith conveyed the information to Doherty, before informing the Council. It was not until the councilmen, were advised to do so by Doherty that they decided to consult an attorney.' While it does not appear that any overt suggestion was made,by the respondent that an independent organization be formed to replace the Employees' 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Council, such express suggestion was unnecessary. The respondent's preference for an inside organization had been made abundantly clear. by its long-standing support of the Work and Employees' Councils and by its numerous manifestations of hostility toward the U. M. W. No great pressure by the respondent, therefore, was required to make certain that the organization which succeeded the Works and Employees' Council would likewise reflect its wishes, rather than those. which the employees might have expressed had their freedom of choice been unimpeded by the. respondent's initial interference. The councilmen,, knowing the type • of organization desired by the respondent, thereupon proceeded to revise the Employees' Coun- cil Plan. Feeling free to hold their meetings on company time and property, until advised otherwise by their attorney, the councilmen held the first meetings of'August 16 and 18, out of which the revision committee arose, on company time. and property and held the August 17' conference with Boiarsky on company time. ' In the light of the respondent's expenditure of more than $4,000 during the first 8 months of 1937 for time consumed by the councilmen in Council activities, the support thus granted by 'the respondent, during the formative stages of ACE, was of a substantial nature. . None of the employees, with the exception of the nine Employees' Councilmen, participated in the original movement to revise the Employees' Council Plan. The true role of the Employees' Council- men as officials of a company-dominated organization acting in their official capacity to revise and. make "legal" their company-dominated. organization is obvious in view of the admission of Councilman Hickman that "there was only 9 men (i.. e., councilmen). and there was not very many to select a committee of 5 from." Although purportedly separating their functions as councilmen and individuals they made no ' such fine distinction with respect to Toney's letter of August 31, requesting that they, as former councilmen, be recognized individually as bargaining agents. Nor did they suffer from any such confusion with respect to the purpose of the "new" organization. Throughout their efforts ran the common thread of the successorship' of ACE to the Employees" Council. The councilmen themselves re- ferred to their activities variously as a "period of reorganization," a plan "to take the place of the Employees' Council Plan," an effort to "bring the plan into conformity with the Act," and an attempt to "revise the Council Plan." Even their- attorney considered them as councilmen acting under instruction from the Council. It is thus apparent that the assertion that they were acting as "individuals" .i's mere subterfuge 1 E. I. DU PONT DE NEMOURS' & COMPANY 947 That the Employees' Council, a company-created union, "could not emancipate itself from habitual subservience to its creator" 50 is illustrated by the numerous requests of the Employees'. Councilmen for advice of the respondent's officials and their submission' of a request for recognition on the very day upon, which they were in- formed ' that recognition was being withdrawn from the Council. This request, contained in Toney's letter of August 31, and -the,reso- lution adopted at the Ruffner Hotel meeting assuming their recogni- tion as exclusive'-bargaining agent, indicate that the organizers of ACE were confident of receiving the respondent's approval. It is apparent from this conduct that those forming ACE took for granted the respondent's interest in it and that the councilmen's conception of the wishes of the respondent played an important part in their organization of ACE. The moving spirits in the formation of ACE were former Works and Employees' Councilmen. Since the Works and Employees' Coun- cils were controlled by the councilmen, acting in conformity with the respondent's wishes rather than by the rank and file of the. employees, the leadership offered to ACE acquires especial significance in its development. As noted above, most of the councilmen were accus- tomed to working with and under the supervision' of management- appointed representatives and management officials. They formed a very small minority in a group of approximately 300 supervisory officials attending the annual banquet given by the respondent in their behalf. It was, therefore, natural that they should associate them- selves with the management point of view and continue their sub- servient attitude. Thus constrained, they refrained from pursuing any activity that they did not believe to have the sanction of the respondent. Despite the respondent's familiarity with the subservient tendencies of the Employees' Councilmen, it made no serious attempt to free them of the shackles previously imposed by.it. Thus, while there was serious doubt as to the validity of the Employees' Council the respond- ent permitted a plant-wide registration for membership in it and Cheetham advised the councilmen that he was "perfectly willing to carry on and recognize the Employees' Council." 51 Doherty, when G0 Cf. National Labor Relations Board v. Falk Corp ., 308 U . S. 453, rev'g 106 F. (2d) 454 (C. C. A. 7) modifying 102 F. ( 2d) 383 (C. C. A. 7) enf'g Matter of Falk Corpora- tion and Amalgamated Association of Iron, Steel and Tin Workers of North 4merica, Lodge 1528 . 6 N: L. R. B. 654 ; where the court stated at page 461 From these findings the Board justifiably drew the inference that this company- created union could not emancipate itself from habitual subservience to its creator, and that , in order to insure employees that complete freedom of choice guaranteed by Section 7, Independent ' must be completely disestablished and kept off the ballot. m'This statement is significant as an 'indication of the respondent's attitude during the period of transition from the Employees ' Council to ACE. The 'councilmen , acting 948 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD informed of the Toney-Stevenson conference, suggested that the Council consult an attorney, and Cheetham upon notifying the coun- cilmen of the agreement with Regional Director Phillips stated the respondent was "not questioning the legality of the Employees' Coun- cil." When notified by Rohrig of the forthcoming organization, ACE, at this same conference 52 and again that same afternoon by Toney's letter requesting recognition, the respondent did not attempt to dis- suade the councilmen from pursuing their activities. Instead.it en- couraged and gave them support by publishing Toney's statement in the Hyper News hinting the forthcoming organization.53 We do not believe that Doherty's and Cheetham's statements to the councilmen during this period can be accepted as, or were considered by the coun- cilmen to be, no more than an expression by the respondent of indiff- erence to the form of labor organization to be chosen by its employees upon the imminent abandonment of the Employees' Council. In view of the respondent's disregard of the, Act for almost 2 years, Doherty and Cheetham must have known that their advice would not be con- sidered as a mere suggestion. The respondent, by setting the activities leading to formation of ACE in motion and by failing to terminate or disaffirm them, although it had numerous opportunities to do so, must be held responsible therefor. That activities of employees who have been constant in their service to organizations dominated by the employer may be imputable to the employer, was recognized by the Court of Appeals for the District of Columbia in International Association of Machinists v. National Labor Relations Board, where the Court stated : 54 under this assurance , had virtually completed ACE on August 31. The respondent's notice of that date apparently came as no real surprise to the councilmen and therefore did not serve . to dissipate the effect of the above statement. 52 Although we are not persuaded by the respondent 's denial of any knowledge of the .forthcoming Plan, the Rohrig incident , at the conference of August 31 is really imma- terial , for the same afternoon the respondent was notified affirmatively through Toney's letter that a new Plan was being formulated. W The Trial Examiner stated that no significance could be attached to the publishing of this notice in the Hyper News because "the con»any , or no one in good faith, could have refused publishing this article in the Hyper News if it directly concerned the em- ployees." however , activities of the U. M . W. which were of equal concern. to the em- ployees were never publicized in the Hyper News . As noted above , the Hyper News was originally established to publicize the activities of the Works Council. Doherty, R. N. Evans , assistant manager, or J. M . Murphy, manager of the Service Department, cus- tomarily went over proofs 'before printing and although it was not affirmatively shown that any of these three officials saw the notice prior to publication, such proof was unnecessary , In the absence of. proof to the contrary , the possibility of anything being included in the Hyper News that did not meet the approval of the respondent is rather remote. The respondent , as publisher of Hvper'News, stands responsible for the matter published therein. The employees unquestionably bglieved that this notice was inserted with the respondent 's sanction . If, as the respondent urges, this notice was published without its sancfion , it should have disclaimed the notice affirmatively so that the em- ployees would know the true attitude of the respondent . This the respondent failed to do. 54 110 F. (2d) 29, 43, enf'g Matter of ' The Serrick Corporation , and International Union, United Automobile Worl. ers of America, Local No . 459, 8 N. L. R. B. 621 , 60 S. Ct. 721, pet. for cert. granted. E. I. DU PONT DE NEMOURS & COMPANY 949 Acme Welfare was a company union. It follows neces- sarily that its leading promoters were company representatives. Men accustomed to such 'submission seldom regain independence overnight. The interval, if there was one, required for the trans- fer of allegience by Byroad, Fouts, Shock and Bolander from Acme Welfare and the company to I. A. M. was too,brief for dis- . ruption of the old and basic loyalty. The evidence supports the conclusion that it was not disrupted, but continued, though mani= fested in less obvious but more effective form. All that they did, therefore, is imputable to the company. Without their efforts no majority for I. A. M., nominal, assisted or otherwise, would have been created on July 28 .or at any other time prior to August ' 11. With them, the majority was not freely and independently created. If there existed only the fact that ACE -vas' launched by persons who had fronted the illegal Works and Employees' Councils, it would have been sufficiently clear to the rank and file employees that their choice respecting representatives for collective bargaining was re- stricted. The employees were not prone to. look upon any "new" organization formed by these leaders as either truly new or inde- pendent of the respondent's interference. Only 5 months before the introduction of ACE they had witnessed a similar attempt to achieve "legality" through revision of the Works Council to the Employees' Council. Impressed with the freedom and cooperation more recently accorded by, the respondent to these same leaders during the regis- tration of Employees' Council members at tables setup in the plant, the recollections of those employees of short memory must have been refreshed and the convictions of those already skeptical, confirmed. The introduction of ACE so,closely upon the heels of the registration in July and immediately following the withdrawal of recognition from the Employees' Council inevitably compelled the employees to view the "new" organization in the light of its background. Employees, under normal circumstances, are sensitive to the'wishes of their em- ployer 55 and they are therefore unable to separate events artificially, from their background or from the general contemporaneous current of which they are integral parts: In this case, the respondent over a period of years, had made obvious to its employees that it was strongly opposed to outside unions, and that it was desirous of main- taining an inside dominated organization as a bulwark against legiti- 0 In Matter of Wheeling Steel Corporation and The Amalgamated Association of Iron, Steel and Tin Workers of North America, etc., 1 N. L. R. B. 699, 709, we said: The power of an employer over the economic life of an employee is felt intensely and directly . . . The employee is sensitive to each subtle expiesssion of hostility upon.the part of one whose good will is so vital to him, whose power is so unlimited, whose action is so beyond apppeal. 283035-42-vol. 24-61 950 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD mate union activity. During this period,. moreover, the employees were fully aware, of the role played by the councilmen, first on the Works and then on the Employees' Council, as tools to carry out the respond- ent's anti-union program. Upon observing a repetition of the coun- cilmen's role as tools of the respondent in the transformation of the Employees' Council into ACE, the employees were bound to regard ACE as they might a familiar tree on a landscape, several branches of which had been severed in an effort to disguise it: Continuing to see it, and their ability to recognize it unimpaired by the mere pruning off of the obvious indicia of the respondent's interference, the em- ployees doubtless were unconvinced by"the respondent's assurance that it no longer existed. Rather, they recognized ACE to be what we have in fact found it to be, a refurbishing of the Works and Employees' Councils. This is apparent from the fact that for a substantial period of time the employees continued to refer to ACE as-the "Council." The general belief of the employees that ACE was a continuation of the Works and Employees' Councils was confirmed by the' re- spondent's publication in the Hyper News of the notice announcing the forthcoming organization. The seed thus planted, the respond- ent through its supervisory officials then proceeded to signify its disapproval of the U. M. W. and encourage membership in ACE: It made the confidential employee lists available to ACE for, or- ganization purposes, advised that it would be a "good order to join" and urged employees to pay ACE dues. ' Cognizant of the respond ent's preferences, the employees joined. ACE. The compulsions imposed' upon the employees through 'the Works and -Employees' Councils were thus continued through ACE. Noting the indelible imprint of compulsion upon the minds ' of employees, resulting from continuation of leadership in an organiza= tion apparently emanating from a 'company-dominated organization, Judge Learned Hand, speaking for the 'Circuit Court of Appeals for the Second Circuit,56 stated The theory is that in cases such as this, where an unaffiliated union seems to the employees at large to have evolved out of an earlier joint organization of employer and employees, the Board may take it as datum, in the absence of satisfactory evidence to the contrary, that the employees will suppose that the company approves the new, as it did the old, and that their choice is for that reason not as free as the statute demands. . . . On the surface it, (the "Independent") seemed to, be such (a revision or 50 Westinghouse Electric & Manufacturing Company v. National Labor Relations Board, 112 _F. (2d) 657 (C. C. A. 2), enf'g Matter of Westinghouse Electric & Mannfac- turfing . Company and United Electrical, Radio and Machine Workers of America, Local #410, 18 N. L. R. B. 300. E. I.. DU PONT DE NEMOURS & COMPANY 951 amendment-of the prior Plan), for it emanated from the old elected representatives, and that alone established an appearance of continuity between the two.... So far as appears, it (the company) was content to let them assume, what was true, that the "Independent" had arisen out of the "Plan"; and to believe, as they quite naturally might have done, that it preferred the -successor to the C. I. 0. local just forming, and still very feeble .51 Since ACE, in the course of its formation, evolved directly from the Works and Employees' Councils and bore the impress of the re- spondent's sponsorship and approval, it is ' unimportant that the formal provisions of the ACE constitution no longer insure direct employer, control. The compulsion placed upon the employees by 'a company-fostered plan that is apparently free of direct employer control has been recognized by the Supreme Court of the United States in National Labor Relations Board v. Pacific Greyhound Lines, Inc.,58 where the court stated by Mr. Justice Stone : * * * continued recognition of the Drivers' Association, would provide respondent "with a device by which its 'power may now be made effective unobtrusively, almost -without further action on its part. Even though he would not have freely chosen" the Association "as an initial proposition, the employee, once: having chosen, may by force of a timorous habit, be held firm to his choice. The employee must be released from these compulsions." The Trial Examiner, 'in recommending the dismissal of the com- plaint, erroneously relied upon our ruling in Matter of Wisconsin Telephone Company and Telephone Operators Union, Local 175A, International Brotherhood of Electrical 'Workers .58 Although the 'instant case bears some similarity to the Wisconsin Telephone case in its successorship aspects, each case must be viewed in the light of its' own 'peculiar background. The Wisconsin Telephone case is not authority for the general proposition that' all successor 'organiza- tions formed free '. of overt employer, interference meet the' require- ments of the Act, nor does it support the contention that ACE is free of company domination. For by pursuing the course of action ' As noted above, the respondent's hostility toward the U.. M. W. and the Hyper News announcement of the forthcoming organization, dissipated the effectiveness of the "neu- trality" notice of August 31 posted by the- respondent. Moreover, that notice' referred only to the, organization allegedly being terminated. It made no reference to the new organization, ACE, nor did it indicate to the employees generally, any distinction be- tween ACE and its predecessors. bs 303 U. S .^ 272, 275, rev'g modification of Board's order 91 F. (2d) 458 (C. C. A. 9), enf'g as modified Matter of Pacific Greyhound Lines, Inc. and Brotherhood of Locomotive Firemen and Enginemen, 2 N. L. R. B. 431. 69 12 N. L. R. B. 375. ' 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described above, the respondent failed to "wipe the, slate clean" of all traces of its previous unfair labor practices.80 In support of its contention that ACE was free of company domination, the respondent ' introduced testimony and exhibits in- dicating that it had, in- addition to the August 31 notice, subse- quently posted other notices reaffirming the assurances of impar- tiality in union matters contained in the notices of August 31. It has been previously noted that the respondent pursued an active policy of hostility toward U. M. W. both prior to and subsequent to the formation of ACE. It appears, moreover, that the notices were not observed by the supervisory officials. That the supervisory officials may have had secret instructions from the respondent not to interfere in the union activities of its employees can be no defense. The employees had no way of determining the existence of such secret instructions, and were affected only by the overt activities of the respondent's supervisory officials.81 The contention that these supervisory officials had no authority to speak for the respondent is, of course, without lnerit. The respondent, in conveying the in- structions of impartiality with respect to union matters, conveyed 60 Cf. National Labor Relations Board v. Newport News Shipbuilding , and Dry Dock Company, 60 S. Ct. 203, 208, rev'g modification of Board 's order, 101 F . (2d) 841 (C. C. A. 4), enf'g as modified Matter of Newport News Shipbuilding and Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers of America, 8 N. L. R. B. 866, where the Court stated , by Mr. Justice Roberts : While the men are free to adopt any form of organization and representation whether purely local or connected with a national body, their purpose so to do may be obstructed by the existence and recognition by the management of an old plan or organization the original structure or operation of which 'was not in accordance with the provisions of the law. * * * As pointed out in National Labor Relations Board ' v. Pennsylvania Greyhound Lines, 303 U. S . 261, disestablishment of a bargaining unit previously dominated by the employer may be the only effective way of wiping the slate clean and affording the employes an opportunity to start afresh in organizing for the adjustment of their relations with the employer. As noted above, we do not believe that the employees were convinced of. the, re- spondent's impartiality by the notices posted subsequent to August 31 in view of the numerous manifestations of antipathy toward the U. M. W. and cooperation with ACE. The employees undoubtedly felt that their lack of confidence in the respondent's true neutrality was confirmed by the tenor of a notice posted by the respondent October 21, 10"8, describing a conference between Regional . Director Phillips, the respondent, ACE. and U. M. W. representatives. The notice stated in part : It was suggested by the representatives of the ACE that the only fair method to decide which . union had a majority was to hold an election under the auspices of the N. L. R. B. to determine which union should be certified as the exclusive bar- gaining agency at Belle Works. Your - company offered to cooperate with the N. L. R. B. in holding a consent election to determine whether either A. C. E. or C. I. O. had a majority of the employees at the Belle Works. Mr. Folio stated he was not in a position to commit his union (U. M. W.) to an election but would refer the matter to his higher officers. The ,respondent in this notice thus presented the position of ACE in a favorable light and cast the onus of preventing an election upon the U . M. W. without setting forth its contention that it did not want to participate in an election with a company-domi- nated union on the ballot. That this position was justified is well settled . See footnote 50, supra. . E. I. DU PONT DE NEMOURS & COMPANY' 953 them to all supervisory officials, including assistant and sub-foremen. By thus conveying these instructions to assistant and sub-foremen the respondent impliedly admitted that such employees were repre- sentatives of the management. These supervisory officials thus rep- resent the management to those working under them. The respondent stands responsible for their activities.62 Under these circumstances the employees could not have been convinced by the respondent's assurances of impartiality. Knowing the respondent's hostility toward the U. M. W., coupled with the expressions of favoritism toward ACE, the employees could not have felt free to join whatever organization they desired. To further support the contention that ACE was free of company domination, the respondent and Intervenor ACE introduced testi- mony showing that the respondent refused to recognize ACE despite its.alleged 50.2 per cent majority. It appears, however, that the respondent was not satisfied as to the sufficiency of the majority because certain categories of employees, including clerical employees, were included among the ACE membership. The respondent's officials were fully aware at the time of the circumstances surround- ing the formation of ACE and had ample reason to believe that ACE was in fact the Employees' Council operating under a different name. There thus was no proper basis upon which the respondent could have extended recognition to ACE. The respondent, therefore, can- not rely upon its abstinence from wrong in this instance as affirmative proof of its innocence, nor can ACE effectively urge this instance of the respondent's failure to accord it improper support as proof of its independence. ' Upon the basis of the entire record, it is clear that the respondent never made any genuine effort to undo the effects of its long campaign of sponsorship of "inside" organizations and hostility to the U. M. W. In the light of this background and the approval bestowed upon their organizational efforts by the respondent through the Hyper News notice it was inevitable that the rank and file employees should consider ACE as an organization instituted by employees "having the confidence of the management and acting for it." 63 Urged to ea Swift. S Co. v. National Labor Relations Board, 106 F. (2d) 87 (C. C. A. 10), rehearing denied, 106 F. (2d) 94, enf'g as modified Matter of Swift R Company and Amalgamated Meat Cutters and Butcher Workmen of North America , Local No. 6411, et at., 7N.L.R . R.269. ' 13 National Labor Relations Board v. Brown Paper Mill Company, Inc., 108 F. (2d) 867, 871 (C. C. A. 5), cert . denied 310 U. S. 651, enf'g Matter of Brown Paper Mill Company, Inc., Monroe, Louisiana and International Brotherhood of Paper Makers, affil- ated with the American Federation of Labor, 12 ' N. L. R. B . 60, where the Court stated : But when, as here, at the beginning of an organizational campaign by a nationally- affiliated labor union , the management frankly declares , that it never has had and doesn't want to have, its men organized , though it of course , recognizes that under the Wagner Act, its men have a right to' organize, the record ought to be entirely free of evidence that the management has, through officers or employees , not officers, 954 DECISIONS OF NATIONAL . LABOR RELATIONS BOARD join ACE by the same supervisory officials and Council leaders who urged them to join the Employees' Council, the employees were subject to the same compulsions. as prevailed under the Works and Employees' Councils. From the foregoing facts and circumstances the conclusion is inescapable that ACE's growth is directly attrib- utable to the respondent's illegal acts, that the respondent's influence continued in ACE and that the continued existence of ACE offers a permanent obstacle to the right of the employees to freely con- sider for themselves the type of agency tllat would best secure to them the benefits of collective bargaining guaranteed by the Act. We find that the respondent has dominated and interfered with the formation and administration of ACE and has contributed sup- port to it. We further find that thereby and by the acts and state- ments of its _ supervisory officials evincing hostility to the U. M. W. the respondent 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 We find that the activities of the, respondent set forth in Section III above, occurring in connection with the operations of the re- spondent 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist from further engaging therein. We shall also order the respondent to take cer- but having the confidence of the management, and acting for it, lent aid and com- fort of any tangible kind to the formation or conduct of an independent organiza- tion , or has discriminated in any way in its favor, as against the affiliated union as to company time and premises , or otherwise. See also Republic Steel Corporation v. National Labor Relations ' Board, 107 F. (2d) 472 (C. C. A. 3 ), cert. denied 60 S. Ct. 806 , enf'g Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R . B. 219 ; The Texas Company v. National Labor Relations Board ( C. C. A. 5 ), 112 F. (2d ) 744. (C. C. A. 5 ), enf'g Matter of The Texas Company and Oil Workers International Union, Local Nos. 367 and 228, 17 N. L. R. B. 843 ; and National Labor Relations Board v . H. E. Fletcher Company, 108 F. (2d) 459 (C. C. A. 1), cert . denied 60 S. Ct. 716, enf'g Matter of H. E. Fletcher Company and Granite Cutters' International Association of America, 5 N. L. R. B. 729 , where the Court stated at page 466: Experience leads to the conclusion tliit the slight efforts made by the respondent would not have the effect of freeing the Plan from the respondent 's domination. The difficulty from a practical standpoint , that of human experience , is that the virus of control is not so easily washed out . To get rid of it, a complete destruction of the body it has lodged in is usually made necessary. . E. I.. DU PONT DE NEMOURS & COMPANY - 955 tain affirmative action which we deem necessary to effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the administration of the Works Council and with the forma- tion and administration of Employees'. Council, and ACE, and has contributed support thereto. We have further found that ACE is a continuation of the Employees'- and Works Councils. Under these circumstances the Works Council, Employees' Council,, anal ACE do not, and cannot; -offer to the employees the free' representation for collective bargaining guaranteed by the Act. We shall therefore order the respondent, as.a means of removing this obstacle to the exercise by the employees of their rights under the Act, to withdraw all recognition from and completely disestablish. the- Works Council, Employees' Council, and ACE as the representative of any of its employees for the purpose of dealing with,the respondent in respect to grievances,, labor disputes, wages, rates of pay, hours of employ= ment, and other conditions of employment. VI. THE QUESTION CONCERNING REPRESENTATION At the hearing it was stipulated. that the U. M. W. and ACE represented a substantial number of employees in the respondent's Belle plant. The stipulation with respect°to ACE was conditioned- upon the Board's decision relating to the alleged domination of ACE by the respondent. Since we have found. in Section III above, that the respondent has dominated and interfered with the formation and administration of ACE, and has contributed support thereto, we shall make no provision for the designation of ACE on the ballot.84 . The Federation claimed to represent a substantial num- ber of employees in the respondent's Belle plant and asserted that it had secured membership cards of '216 dues-paying members in sup- port of its claim. The respondent has refused to recognize any of the unions until it has been established in an election which of the unions represents a majority of the employees in the appropriate unit. We find that a question has arisen concerning the representation of employees of the respondent at its Belle plant. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE 'We find that the 'question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial 64 See footnote 50, supra. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE APPROPRIATE UNIT At the hearing it was stipulated that a plant-wide unit including all hourly production , maintenance, and construction employees, With the exception of non-production clerks, janitors, watchmen , gatemen, inspectors, gardeners , clubhouse attendants and maids , and technical employees, constituted an appropriate unit. It was further stipu- lated that all Class 3 clerks and Class 3. stores clerks , who perform primarily manual work, except stores office clerks and stenographers, should be included in the appropriate unit. The Federation would also include conductors, ,a chauffeur paid on a weekly basis, assistant foremen, subforemen, shift engineers , and employees described- as "detail ' men," who are employed on a part-time basis as assistant foremen, subforemen , or shift engineers. The assistant foremen, subforemen, shift engineers , and detail men are engaged in a supervisory capacity and we therefore conclude that they should be excluded from the unit. The U. M. W. objects to the inclusion of the conductors solely on the basis of their , alleged supervisory authority. The conductors have little, if any, super visory authority since they merely give the signal for the train crew to start and stop and line up the procedure for movement of the train the operations of which are limited to the plant yard. We conclude, therefore, that the conductors should be included in the appropriate unit as production employees. The U. M. W.' objects to the inclusion of the chauffeur on the ground that he is paid on a weekly basis. ' The testimony shows that there is no substantial dif- ference in the employee status of employees paid on a weekly in contrast to those paid on an .hourly basis. We conclude, therefore, that the chauffeur should be included in the appropriate unit, as 'a production employee. We find that all hourly paid production , maintenance, and con- struction' employees , Class 3 clerks . and Class 3 stores clerks, who perform primarily manual work, conductors and chauffeur of the respondent at Belle, West Virginia, exclusive of supervisory em- ployees, stores office clerks , stenographers , non-production clerks, janitors, watchmen, gatemen, . inspectors, gardeners, clubhouse at- tendants and maids, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees 'of the respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuate the policies of the Act. E. I. DU PONT DE NEMOURS & COMPANY 957 IX. THE DETERMINATION OF REPRESENTATIVES At the hearing it was 'stipulated that all employees on the re- spondent's pay roll next preceding the 30th day prior to the election and all employees laid off because of slack work prior to such eligibility date should be eligible to vote. We see no reason for de- parting from the agreed eligibility date. We find that the question which has arisen concerning the repre- sentation of employees of the respondent can best be resolved by means of an election by secret ballot. However, since the respondent has, by engaging in various unfair labor practices, interfered with the exercise by its employees of the rights guaranteed them by the Act, we shall not now set the date for the election. We shall hold the election, however, upon receipt of information from the Regional Director that the circumstances permit a free choice of representatives unaffected by the respondent's unlawful acts. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. District 50, Chemical Division, United Mine Workers of Amer- ica, Association of Chemical Employees, and West Virginia State Federation of Labor are labor organizations within the. meaning of Section 2 (5) of the Act. . 2, The respondent, by dominating andrinterfering with the admin- istration of the Works Council and the formation and administration of Employees' Council_ and the Association of Chemical Employees and contributing support to each of them, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3, The respondent, by interfering with, restraining, and coercing its employees in the exercise of" the rights guaranteed in Section 7 of the Act, 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. 5, A question affecting commerce has arisen concerning the repre- sentation of employees of the respondent within the meaning of Section 9, (c) and Section 2 (6) and (7) of the Act. 6, All hourly paid production, maintenance, and construction em- ployees, Class 3 clerks and. Class 3 stores clerks, who perform pri- marily manual work, conductors and chauffeur of the respondent at Belle, West Virginia, exclusive of -supervisory employees, stores office 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerks, stenographers, non-production clerks, janitors, watchmen, gatemen, inspectors, gardeners, clubhouse attendants and maids, constitute a unit -appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. ORDER.. Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, E. I. du Pont de Nemours & Company, Belle, West Virginia, and its officers, , agents, successors, and assigns shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Works Council,. Employees' Council, Association of Chemi- cal Employees, or with the formation or administration-of any other labor organization of its employees, and contributing support to. Works " Council, Employees' Council, Association of Chemical Employees, or. to any other labor organization of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor' organizations, to bargain collectively through• representatives of, their own choosing, and to engage in concerted . activities for the purposes of collective bargaining and 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) Withdraw and withhold from Works Council, Employees' Council, Association of Chemical Employees, and any successor or- ganization thereto all recognition as representatives of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment. or other' conditions of employment, and completely disestablish Works Council, Employees' Council, and Association of Chemical Employees as such representatives; (b) Post immediately at conspicuous places at its Belle, West Virginia, plant and maintain for a period of at least sixty (60) con- secutive days from the date of posting, notices to its employees stating (1) that the respondent will not engage' in the conduct from which it is ordered to cease and desist -in paragraphs 1 (a) and (b) of this Order; and (2). that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) 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. ' E. I. DU PONT DE NEMOURS & COMPANY DIRECTION OF ELECTION 959 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National. Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby . DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with E. I. du Pont de Nemours & Company, Belle, West Virginia, an election by secret ballot shall be conducted- at such time as the Board shall in the future direct, under the direction and supervision of the Regional Director for the Ninth 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 all hourly paid production, maintenance, and construction employees, Class 3 clerks and Class 3 stores clerks, who perform primarily manual work, conductors and chauffeur of the respondent at Belle, West Virginia, who were employed by the respondent during a pay- roll period which the Board shall in the future specify, including employees laid off within sixty (60) days prior to such pay-roll period and employees on leave of absence, but excluding supervisory employees, stores office clerks, stenographers, non-production clerks, janitors, watchmen, gatemen, inspectors, gardeners, clubhouse attend- ants and maids, to determine whether'they desire to be represented by District 50, Chemical Division, United Mine Workers of America, or by West Virginia State Federation of Labor (A. F.- of L.) for the purposes of collective bargaining, or by neither.