Solvay Process Co.

In the Matter Of SOLVAY PROCESS Co. AND WM. G. B. TFIOMPSON and DISTRICT 50, UNITED MINE WORKERS OF AMERICA Case No. R-1864:-De'eided August 15, 1940 Jurisdiction : 'chemical products manufacturing industry. Investigation and Certification of Representatives : existence of question denial of employment relationship; election necessary. Unit Appropriate for Collective Bargaining : all employees of the Company who were working pursuant to the agreements between the Company and an alleged independent contractor, including laborers used in and around the plant of the Company and longshoremen and stevedores working on the docks of the Com- pany, but excluding clerical and supervisory employees. Definitions Alleged independent contractor who was formerly an employer of the employees here involved, but who prior to the filing of the petition surren- dered the contracts under which they were working and went out of business with no intention of resuming it, held no longer an employer of such employees. Company that owned and managed plant in which employees of alleged independent contractor worked, was the sole source of the money with which they were paid, and maintained control over employment to the extent of sending men out of the plant if their work was unsatisfactory, indicating which men it desired to have work on certain jobs, inspecting the work while it was in progress, and in some cases directing the employees as to what was to be done, held the employer of such employees. Practice and Procedure Petition dismissed as to one of two co-employers who was no longer an employer at the time of the filing of the petition. Mr. Charles Y. Latimer, for the Board. Hunton, Williams, Anderson, Gay c Moore, by Mr. P. Justin Moore and Mr. Edmund M Preston, of Richmond, Va.; Mr. David A. Harrison, Jr., of Hopewell, Va.; and Mr. Harry S. Ferguson, of New York City, for the Company. Mr. Archer L. Jones, of Hopewell, Va., for Thompson. Mr. Herman Edelsberg, of New York City, for the Union. Mr. Robert J. Francis, of Petersburg, Va., for the Council. Miss Grace McEldowney, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 12, 1940, District 50, United Mine Workers of America, herein called-the Union, filed with the Regional Director for the Fifth Region (Baltimore, Maryland), a petition, and on April 23 and May 3, 1940, first and second amended petitions, alleging that a question 26 N: L. R. B., No. 68. 650 SOLVAY PROCESS CO. 651• affecting commerce had arisen concerning the representation of em- ployees of Solvay Process Co. and-Wm. G. B., Thompson, .Hopewell, Virginia, herein called respectively the Company and Thompson, and requesting an investigation and certification of representatives' pursuant to - Section 9 (c) of the National Labor Relations Act, 49. Stat. 449, herein called the Act. On May 3, 1940, the National. Labor Relations Board, herein called the Board, acting pursuant to Section 9, (a) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as ' amended, ordered an investigation and authorized the Regional Director -to conduct it and to provide for an appropriate hearing upon due notice. Pursuant to notice duly served upon the Company, Thompson, and the Union, a hearing was held at Hopewell, Virginia; from May 13 to 29, 1940, before Edward Grandison Smith, the Trial Examiner duly designated by the Board. During the hearing, the petition was further amended on motion of the Union to enlarge the unit claimed to be appropriate.' The petition; as so amended, designated as the third amended petition, was served upon the parties and upon Solvay Workers' Council, herein called ,the Council, •a labor organization claiming to represent employees. directly affected by the investigation under the amendment.- The Council filed a motion to intervene which was granted by the Trial Examiner. The Board, the Company '2 Thompson, the Union, and the Council were represented by counsel and.participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the 'hearing counsel for the Company, then appearing specially, moved to dismiss the proceeding as to the Com- pany on the ground, in brief, that the proposed bargaining unit did not include any of its employees. At the close of the hearing he again moved the Board either (1) to dismiss the petition on the grounds that no question affecting commerce concerning employees of. the Company had, arisen, that no appropriate unit existed within the scope of the petition as finally amended, and that'the Board had no jurisdiction to decide that the appropriate unit of employees of the Company included any individuals who were not employees ' of the Company or who were not employees within the meaning of the'Act; or (2) to decide that the unit sought by the Union was not an appropriate unit, and that .the appropriate unit of employees of the Company, as showfi by the evidence, consisted of certain employees on its pay roll, with specified exclusions I The notion was granted with leave to any of the parties to move for such continuance of the proceeding as might be necessary on account of the amendment , and to examine further any witnesses who had testified. a The Company at first appeared specially, but filed a general appearance after the motion to amend the petition was granted. , 652 ' DECISIONS OF NATIONAL-LABOR ,RELATIONS BOARD as, -described' in. the Xompany,'s motion.,, ,Counsel for, Thompson moved, to ►dismiss the' petition as: to . Thompson on the . ground that, Thompson' was nottengaged. in business' at. the time of the,filing of the petition:. Counsel' for theiCouncil,moved to dismiss the third amended petition principally on the',ground that :the ,bargaining , unit sought, was' not/;appropriate even, though itt might' be determined that em- ployees of; Wm. G. ; B.. Thompson were employees•'of the, Company. Ruling on!,these 'motions lwas,r`eserved'( for the determination of the Board:+'lsThe, Company's motions.are'hereby denied and Thompson's motion is grantedi for, the reasohs,,given' -below., , - The ,'motion 'of A he Council, referring only to .the-'j"third amended petition,',', is in effect granted; .in' so far as -ally' iilterest: of ,the Council is concerned, by, our finding ,as Ito the -appropriate' unit: I . . • • t 111' • - : • At, the close of the hearing,thetTrial,Examiner;granted'a motion of, counsel,for the Union to conform,the notice of hearing and the-petitions tb,,the; Iproof. '1fThe,:Trial, Examiner, made several other. rulings oni motions' and, on obj ections; to ,the admission of : evidence: -The; Board has :reviewed the rulings of the! Trial,Examiner,' .,and, finds that no prejudicial- errors'were committed. 'The rulings 'are'hereby affirmed. Pursuant,, to. requests . therefor, and, upon' . notice to. all parties,, a hearing 'was ,held,before:the,Board in' Washington,,. D. ,C.,,on.July 18, 1940,:for the purposeiof oral argument'-: The Company and the Union appeared find, participated. , The • • Company, , the Union, . and ; the Council also filed briefs; which'ha -e been- considered by ;the Board?,,,, ' Upon, the • entire record., in the proceeding, the Board,tmakes ,the following: - , •I= , .(t, ., ,I , , it )!I i l "t;ti; r+` } till t• ' FINDINGS OF. FACT-,-I ` 1 t: i n; , I.I TH'E EMPLOYERS A; The business of the Company (Solvay ,Process{ Co.,' an; affiliate; of ; Allied 'Chemical & -Dyes.Corpo-- ration,'is a New,York-corporation engaged, in the manufacture and sale' of chemical; products. At its plant at Hopewell, Virginia, it, manu= factures nitrogenous and 'other,; products; including -nitrate of, soda, nitrogen solutions, and :chlorine.t 'The raw materials -used, in its manu- factuPing, operations' are soda'lash; coke, and air.-,'During the 12 months'eiiding,May' 1, 1940;'over 75 pdr;cent of the-tonnage produced at, the plant was shipped out of the State,-,and all, of the soda ash' and,- 75,per• cent^of•tthe coke used as raw materials,were shipped to,the plant from•;points outside Virginia! ThefCompany admits that it,is engaged, in, commerce lwithin•.the meaning of, the Act.',, . Il l . ' .. , The, Hopewell plant was, origin ally, constructed by Atmospheric 3 These facts were largely stipulated by the parties at the hearing • The parties also stipulated that there might be included in the record the facts appearing in Matter of The Solvay Process Company and United Chemical Workers Industrial Union No 64, 5 N L. R B 330, in so far as they show that the plant is engaged in interstate commerce, since the set-up of the Company is practically the same now as at the date of the hearing in that case. SOLVAY,,PROCESS co. 653 Nitrogeri, Corporation, herein called ''Anco, another affiliate of Allied 'Chemical, -.Dye Corporation. When Anco was dissolved in.1936 its properties were acquired by the Company which had.leased the plant yin 1934: - Prior, to, March 8, 1940, some 1,400 production and maintenance employees,, were employed at the plant, of whom approximately. one- -half were listed on the pay roll of the Company and the-rest listed on the'pay'roll of Wm.. G. B. Thompson. The number of Thompson men at'work in, the plant on any one day varied widely} from a minimum of 60 or 80 to a maximum of 400 or more. ' , -J3. The relationship between the, Company, and , Thompson Thompson named in-the petition' as a co-employer with the Com- pany; is' a' civil' engineer who prior to 1931 was employed at the Hopewell plant in,- connection with construction work., In 1931 and thdreaftei' he entered into a series of agreements, first with Anco and later with the Company, for the performance of work which had previ- ously been' done by-one Captain Swain. The agreements under 'hick Thompson operated varied somewhat from year to' year,'but in' 1940 they were four iii number and covered the unloading of soda ash from ships, the loading of bagged nitrate into ships, the unloading of Wk 'soda -from; railroad, boxcars, and the furnishing of-common labor. In 1935 Thompson wasalso employed' by the Company as, superintendent of construction, receiving additional compensation in that capacity. While the first Thompson agreements, in 1931 were entered into after competi'tive • bid's 'and' in some cases covered only specific jobs, this practice, was not • continued. Thereaf ter yearly, agreements, drawn up in' the form' of purchase orders, or ' contracts, - by the Company, were based on proposals submitted by Thompson, and fixed the general terms urider 'which he was to, perform work when required.' Under 'the loading, and unloading agreements, Thompson wtis -paid oil, a' tonnage basis; and under the miscellaneous jobs agreement on a "cost plus";basis:' To a large extent,,Thompson made use of•,the same employees' for, the- work under both forms, of'agreement. ' Rates to be paid' by Thompson for labor were, specified. If higher rates to 'the laborers 'engaged by Thompson, became necessary, the 'Company was to '-pay over to Thompson the additional amount., Likewise', the Com- pany' agreed. to reimburse Thompson for any new taxes or'increases in premium rates on workmen's compensation insurance, in connection with 'the laborers engaged'by Thompson. He was -not liable for'ships' demurrage charges for delays caused''by strikes 'oi' other- causes not within his control.' Thus it 'appears'that under both types of agree- ment Thompson was practically assured of a definite rate of return, 4 Thompson testified that the contracts were terminable at the Company's will, and that it could have arranged to do the work itself without-protest from him, , but that neither he nor the Company had contem- plated that the Company would go into competition , with , him. . , 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD based on the' amount of work done by the laborers engaged through him, while the Company assumed the risk of the more important of any unexpected expenses which might be incurred by Thompson in making arrangements for the labor to be used by the Company.' In addition, Thompson was under no legal obligation to continue to en- gage labor for the Company if he decided that the arrangement was no longer profitable for him. Under the terms of his agreement, there- fore, it appears that the position of Thompson in relation to the Com- pany was more nearly 'that of an employment agent for the Company than that of an independent contractor. Operations under the contracts with the Company constituted Thompson's sole business. His work was performed on the Company's piers, on its chartered ships, or in its regular departments, with ma- chinery which it owned and kept in repair and for which it furnished fuel and power. His office was on its property, in a building shared in part by the Company; 6 his telephone came through its switch- board; he received•his mail in its care; it supplied without charge elec- tricity and first-aid service; and he used pay-roll sheets on which the name of the Company was printed.' Up to the time of the strike, hereinafter mentioned, the same attorney represented both Thompson and the Company. Although Thompson employed a few supervisory employees who took charge of loading and unloading the boats and supervised certain other jobs, Thompson men were often sent into the Company's plant on work not under the supervision of Thompson's supervisory force. In spite of the contention of the • Company and Thompson that such work required practically no supervision, the Company's own super- visory employees' were admittedly present, signed the time cards of the Thompson men, and, at the least, inspected the work of the men. The number of supervisory employees engaged by Thompson did not exceed 10,, although as.already noted, on some occasions'as many as 400 of the Thompson men were engaged in work ,in and about the Company's premises at'the same time. Thompson employees testi- fied that the Company foremen on various occasions told them what to do, and sent them back to Thompson's office or out of the plant if their work was unsatisfactory. Even on the loading and unloading jobs, Company employees were present to inspect and check the amount of work :done and to see that the Company's property was not endangered. Although there was no conclusive evidence of actual transfers be- tween the respective pay rolls maintained by Thompson and by the Company, many of the men were listed first on one and then on the 5 The Company 's interest in ascertaining Thompson's raid of return is apparent from the statements prepared from time to time by its accounting office estimating his expenses and computing his profit. e Thompson testified that the building was a former construction office which he had bought from the Company for $120 and had remodeled to suit his purposes. 7 He testified these had been purchased from the Company. SOLVAY PROCESS CO. 655 other. In some instances Thompson employees found notes on their time cards in Thompson's office telling them to report to the Com- pany's doctor for the physical examination required before an employee was placed on the Company's pay roll; in other cases they were told by the Company's foremen to report for work with the Com- pany. There is no evidence that Thompson protested against such interference with his labor supply. For certain work the Company supplied Thompson with a list of names of men whose work had been found satisfactory, and frequently Company foremen asked for specific individuals. Thompson testified that he complied with these 'requests if possible. Although he insisted the Company could not discharge his men, he admitted that it did not have to use anyone that he sent to work on a given job. Under the foregoing circumstances, we find that supervisory employees of the Company were in a position to, and did', exercise supervisory authority over the Thompson employees. C. Conclusions regarding the relationship of the, Company and Thompson to the employees at the Hopewell plant The present proceeding raises no question as to the employee status of persons on the Company's pay roll." Nor is it denied as to those on Thompson's pay roll, that until he went out of business on March 13, 1940, Thompson hired and discharged them, paid their wages, kept their time cards, exercised supervision over their work,, carried work- ,men's compensation insurance, made unemployment compensation payments, and was generally regarded as their employer by the employees at the plant and by the residents of Hopewell. We find that until March 13, 1940, Thompson was an employer of the employees here -involved within the meaning of the Act.' He testified and we further find, however, that on that date he surrendered his contracts and went out of business, with no intention of resuming it. It necessarily follows that he was no longer an employer at the time of the filing of-the petition, and we therefore dismiss the petition as to him. The question remains whether the Company was also an employer of Thompson's employees, as claimed by the Union. The Company contends that it could not be; because'Thompson was an independent contractor.1° Since the Company owned and, managed, the plant in 9 Although Thompson was named in the petition as a co-employer with the Company, the Union did not contend that he was the employer of all the employees in the unit proposed in the third amended petition. i Section 2 (2) of the Act provides that the term "employer" as used in the Act ":.. includes any person acting in the interest of an employer, directly or indirectly ..." i5 The facts in the present case are such that even at common law Thompson might be considered the agent of the Company rather than an independent contractor. He admitted that he had never obtained a license from the State to engage in business as a contractor. We said, however, in Matter of Sierra Madre- Lamanda Citrus Association and Benjamin II. Betz, an individual doing business as Betz Packing Company and Citrus Packing House Workers Union, Local No 20766, 23 N. L R. B. 143, that it was unnecessary to decide whether the respondent Betz was an independent contractor under the State law, since both respond- ents were employers within the meaning of the Act. 656' DECISIONS OF NATIONAL LABOR RELAT-IONS BOARD which the employees worked , was the sole source of the, money with, which Thompson paid them, and 'since it maintaine'd control over employment to the extent that it sent, men out of the plant if - their; work was unsatisfactory , indicated which men it desired to have work. on certain jobs, inspected the work while it was in ,progress; an& in, some cases directed the employees as to what was to • be done, we find' that the Company was also an employer of the Thompson employees within Section 2 (2) of the'Act. f II. THE ORGANIZATIONS INVOLVED,, District 50, United MineWorkers of America, is a labor organization affiliated with the Congress of'Industrial Organizations, whidh'admits to' membership in its local union, Local No. 12103; employees workin'g at' the Hopewell plant of the Com'p'any: = 'Solvay Workers' Council 11 is an unaffiliated labor `org'anization admitting to membership all -employees ' of the -"Company'except executives, supervisors,. and foremen'. It does not regard Thompson employees as employees of,the Company and, has never sought mem- bership among them. III. -THE, QUESTION CONCERNING•'REPRESENTATION { ,.r In 1937 the Union began its activities among the'emplo'ye'es at'the Hopewell plant'by organizing Local N4:'12103, made iip`of employe'es' on the Company's pay roll. Al approximately 'the same time the Council was formed atnong the Company's employees. On Ma,rch'24; 1938, following the filing by the Union of a petition'for investigation and certification of representatives,' the Regional Director of the Board arranged a consent 'election in which the Union'laiid the Council participated and which resulted' in the' selectioil'of' the Council as the bargaining representative of employees'in'an agreed unit of employees listed on the Company's pay roll. In' 1939 the Union resumed its activities at the plant, 'exteriding'terribership not only' to employees listed' on the Company's pay roll'but'also to those on Thompson's pay roll. The latter were organized in a separate division of the local union,' called the 'Thompson 'Divisioh'''Of Local No. 12103. Iii a letter to Thompson dated March 1, '1940, the"Thompson Division claimed that it represented a majority of his employee's and requested recognition as their exclusive bargaining' age I nt.12, He replied on March 7 that he had no way of determining whether it was 11 On February '10, 1938, the Board dismissed a complaint which alleged that the Council was a company. dominated union Matter of The Soicay , Process Company and United Chemical Workers Local ,Industrial Union No 16Z, 5 N L'R B 330 ,. q,, 12 The request had first been made on the preceding day in a conversation ,during which the union repre- sentative also claimed Thompson had discriminated against several of its members. , ' " ' ' SOLVAY PROCESS'CO. - 657 -entitled to such, recognition and suggested that, the question be referred to the Board for determination. As he was, unwilling to agree to a consent election, and the Union was unwilling to wait for a Board hearing, a' strike was called, by the "executive board of the Thompson Division local, beginning "on the night of March 8.13 Thereafter Thompson decided to cancel his contracts with the Com- pany 'a,nd go' out of business; 'and.' on 'March '13 he informed the Coinpany''of his decision, posted a notice of his decision t6' his em- •ployces,f 'and on the following"day - p'aid' them off: On March ` 18 he notified``'the''State 'Unemployment, Compensation Board and the ' Collector of Internal Revenue `that he had terminated his employment with the Company. On March 13 a field representative of the Union wrote the Company stating that the committee and representatives of the Union were a-vailable to `discuss a settlement of the strike. The Company .did not reply , to this communication. A few , days later Thomas, B. .Morton, , Commissioner of Labor of the State of Virginia, and Com- missioner I Daly, of the Conciliation, Service of the United States Department of Labor, went to.the office of the manager of the Com- fpany to discuss the matter. In his conversation with them the manager maintained that Thompson's employees were not employees of, the Company. We have found, however, that such employees are employees of the Company within the meaning of .the Act.14 At the time of the hearing none of the Thompson men had been re- employed by the Company. Some of the jobs they had formerly performed, had been, and others allegedly were to be, eliminated; Some were being handled by employees on the Company's pay roll; and much of the, work was being done by other contractors under short-term contracts. Because boats discontinued docking at Hope- well during the strike, loading and-unloading were being carried on at Norfolk at added expense to the Company,. The manager admitted that the Company would resume these operations at Hopewell if, possible. Although it is not clear from the record whether the strikers were still picketing'the plant, the temporary nature of the Company's arrangements for carrying on the work they had (lone and its inability to have boats dock at Hopewell demonstrate that the labor dispute was still,current at 'the time of the hearing.15 Since Section 2 (3) of the Act provides that "the term `employees' shall include . . ..any individual whose'work has ceased,as a consequence of, or in connec- tion with any current labor dispute," we find that the strikers have retained"their status as employees of the Company. ^' 13 Although none of his men reported for work that night , Thompson testified that he was unable to tell whether it was because the majority were members of the Union or because a minority forced them out. 'i4'See Section I, supra Is' In Matter of Standard Insulation Company , Inc and Local #2111, chartered by A F of L 22 N. L R B 758, we stated , "Among the criteria for determining whether a strike continue in existence are the employ- er's filling of positions left vacant by the strikers , his resumption of normal operations , and the continuance of concerted strike activities by the workers 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that a question has arisen concerning the representation of employees of the Company. 1V. 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 Company described in Section I above, has a close, intimate, and substantial 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. V. THE APPROPRIATE UNIT In its second amended petition , on which the notice of hearing was issued, the Union included in the proposed bargaining unit only employees who had been carried on the, pay roll of Thompson." At the hearing it further amended the description of the unit to include also employees carried on the Company's pay rolL11 The Company resisted both petitions on the ground that employees of Thompson were not its employees . We have already found, how- ever, in Section I above, that the Company is the employer , within the meaning of the Act , of the employees formerly carried on the Thompson pay roll. The Company resisted the third amended peti- tion on the further ground that employees on its pay roll were already represented by a labor organization with which the Company had a bargaining agreement . The'Council joined in the latter contention. 'It appears that the first bargaining agreement between the Company and the Council was negotiated in 1938 following the consent election of March 24 , and covered the unit agreed on by the parties at that time, from which Thompson employees were specifically excluded.18 New agreements for yearly periods were negotiated in 1939 and 1940. 16 The appropriate unit as described in the second amended petition included, "All employees hired to work pursuant to the contract in force between Solvay and Thompson at or about the time of the strike. March 1940 , comprising labor used in and around the plant of the Solvay Process Co , and longshoremen and stevedores working on the docks of the Solvay Process Co , but excluding clerical and supervisory employees 17 The appropriate unit as amended at the bearing included , "All hourly paid production and mainte- nance employees , whether carried on the pay roll of Thompson or Solvay, employed at the Hopewell plant of Solvay Process Co , excepting those engaged in a supervisory capacity and excepting further clerical and technical employees hired after March 8, 1940 , the date of the strike called by petitioner " Is The relevant provision of the consent election agreementwasasfollows " 'Eligible voters' as used herein to designate those i ligible to vote in the election shall be . (1) all production employees and all maintenance employees at the Company's Hopewell plant as shown by the pay -roll list of March 8, 1938, including those temporarily absent for illness or other cause and watchmen , plus (2) those persons who (i ) were released from the Company 's employment because of reduction in force after February 6, 1938, and before March 8, 1938, and (n) had been employed by the Company continuously from February 7, 1936, to February 7,1938, both inclusive, but shall exclude (a) executives and supervisory officers or employees , (b) office employees in the research and engineering division of its development department , (c) clerks on the salaried roll in the main office , and (d) employees of W. G B Thompson , an independent contractor doing work within said plant." SOLVAY PROCESS CO. 659 Before the existing agreement was signed." the Company, requested and received from the Council an affidavit, dated February 14, 1940, which showed that it had 460 members.20_ As stated above, the Union made a motion, suggested by the Trial Examiner, to include in the appropriate. unit employees carried on the Company's pay roll as well as employees carried on Thompson's pay roll. We have already noted that the Council and the Company are now bound by a contract covering the employees listed on the Com- pany pay roll. The Council further objected that differences in working conditions, function, and skill rendered improper any lump- ing, together of the two groups into a single unit. It appears that employees listed on the Company's pay roll had more regular employ- ment than those listed on the Thompson pay roll, were more skilled, were more highly paid, and were obliged to undergo physical examina- tions before being given employment. Such examinations were not required of Thompson's men. The latter for the most part performed longshore work and common labor of an intermittent nature, depend- ing on the arrival of boats or irregular demands for labor at the plant. The turnover among Thompson men was much higher than that among the Company's employees because of the nature of the work and the character of the employees. In view of the, foregoing we find no basis for including both em- ployees on the Company pay roll and employees on Thompson's pay roll in a single unit at this time. Aside from the question of the status of Thompson employees as employees of the Company or as employees under the Act, no objec- tion has been made to the unit described in the second amended petition.21 The exclusions requested by the Union are those which we have usually allowed in similar cases 22 We find that all employees of the Company who were working pur- suant to the agreements between the Company and Thompson, includ- ing laborers used in and around the plant of the Company and long- shoremen and stevedores working on the docks of the Company, but excluding clerical and supervisory employees, constitute a unit appro priate for the purposes of collective bargaining, and that said unit will insure to employees of the Company the full benefit of their 10 The contract was signed on March 11 , 1940, to become effective on April 1, 1940. 20 In January 1940 a petition had been filed with the Board by the Union, in which it claimed to represent a majority of the Company 's employees in a unit practically the same as the one covered by the contract, and on February 2, 1940, the Union wrote to the Company requesting recognition . At a conference there- after held at the Regional Office of the Board, the Union produced cards showing a substantial interest in the matter, but did not claim that they proved its majority status. The petitition was later withdrawn, but at the hearing in the present proceeding counsel for the Union stated that it had been reinstated and was then pending as Case No . V-R-430. 2, See footnote 16, supra. 22 The description excludes "clerical and supervisory employees " It is unnecessary to consider the exclusion of "technical employees, watchmen , and company :police, and . . all employees hired after March 8, 1940, the date of the strike called by the petitioner," as requested in the so-called third amended petition, since none of the Thompson employees fall within such classifications 660• DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights''to• self-organization' and to collective bargaining and otherwise effectuate the' policies of the Act. • ' VI. THE DETERMINATION OF REPRESENTATIVES J Ii its second amended petition the Union 'claimed 'to represent' all of the employees in'the unit which we have' found to be'appropriate.' At' the hearing it 'introduced in evidence 761' authorization' cards, and, requested certification on the record. The position of the' Corilpan' as to certification on the record was not stated since the Company at all times'relied on its contention that it was'not an' erhpl'oycr of the men, listed on Thompson's pay` roll. A check by a field examiner of the Board showed that of the 761' cards, '566 were dated between' Janiiaiy' 1 and April 1, 1940; 195 were undated, and -588' bore the' signatures of employees'on the pay rolls'of Thompson between'Janu' ary 1 and March 12, 1940.23 We find that the question'conce'rning' representation can best be resolved by. means of an election by secret' ballot. In'view of the irregularity 'of the employment of the'en'ployees' here involved, and in order not to' deprive any' of the'•interested employees of the right to participate in the voting,' we shall' direct that eligibility to vote shall be determined on the basis df the Thom.i' son pay rolls during the period from January 1 through Maich 12, 1940. Upon 'the basis of the above findings of fact and iipoli the entire. record in the case, the Board makes the following: ' CONCLUSIONS OF LAW 1. Solvay' Process Co., Hopewell, Virginia, `is tl e employer of the' employees here involved, who were'engaged in performance of 'W'o'rk" under the agreements between the Comp'anv and Thompson, within' the meaning of Section 2 (2) of the Act. 2. A question affecting, commerce 'has arisen concerning therepre- sentation of employees of the ' Company, within the meaning of Section 9 (c) and Section 2 (6) and (7)'6f the National Labor Relations Act. ' 3. All employees of the Company ' who were working pursuant to the agreements between the Company and Thompson, includingf laborers used in and around the plant of 'the Company and longshore- men and stevedores working on the docks of the Company, but exclud ing clerical and supervisory employees, constitutwa unit appropriate ,for the purposes of collective bargaining, within t, fie meanuig of Section 9 (b) of the Act. ' ' 23 A list of Thompson's Social Security cards for 1940 which was introduced in evidence showed that he had employed 704 separate individuals, including supervisors , during that period SOLVAY PROCESS CO. 661 DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449 , acid- 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 Solvay Process Company, Hopewell, Virginia, an election by secret ballot shall be conducted ,as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director of the Fifth 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 employees of the Company 'who were working pursuant to the agreements between the Company and Thompson and whose names appear on any of the pay rolls of Win. G. B. Thompson from January 1, 1940 through March 12, 1940, including laborers used in and around the plant of the Company and longshoremen and stevedores working on' the docks of the Com- pany, but excluding, clerical and supervisory employees and any employees who have quit or have been discharged for cause since January 1, 1940, to determine whether or not they desire to be repre- sented by District 50, United Mine Workers of America, for the purposes of collective bargaining. 323429-42-vol. 26-43