Diamond Alkali Co.

In the Matter of DIAMOND ALKALI COMPANY AND ITS SUBSIDIARY, STANDARD PORTLAND CEMENT COMPANY and FEDERAL LABOR UNION, No. 22162 (AFFILIATED WITH AMERICAN FEDERATION OF LABOR), ALSO KNOWN AS CHEMICAL WORKERS UNION, No. 22162, PAINESVILLE, OHIO Case No. C-1%54.-Decided March 09, 1941 Jurisdiction : chemical manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: support of anti-outside-union vigilante movement; warning union president that he might be subject to violence unless he supported this movement; remarks by officials and supervisory employees derogatory to union and leaders ; threat of shut-down. Company-Dominated Union: formation of, following appearance of outside union and drive against outside organization which the respondent instigated and approved-participation by representatives of management in initiation and formation : ordering employees to attend a meeting on company time and prop- erty ; soliciting members-support to : permitting employees to engage in activities on company time and property : soliciting members ; collecting dues ; holding election Remedial Orders : disestablishment of company-dominated union; abrogation of contract. - Mr. Max'-W. Johnstone, for the Board. Mr. Harold T. Clark, of Cleveland, Ohio, for the respondents. Mr. Ralph W. Bell, of Cleveland, Ohio, for the Federation. Mr. H. A. Bradley, and Mr. Jesse Gallagher, both of Akron, Ohio, for the Union. Miss Mary E. Perkins, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon second amended charges duly filed on September 19, 1940, by Federal Labor Union No. 22162 (affiliated with the American Federation of Labor), also known as Chemical Workers Union No. 22162, Painesville, Ohio, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated September 19, 1940, against Diamond Alkali Company and its sub- 30 N. L. R. B., No. 111. 700 DIAMOND ALKALI COMPANY 701 sidiary, Standard Portland Cement Company, herein called the re- spondents,' alleging that the respondents had engaged in and were 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. Copies of the complaint and notice of hearing were duly served upon the respondents, The Alkali Employees Federation, Inc., and the Union. ` With respect to the unfair labor practices, the complaint alleged in substance that the respondents (1) dominated and interfered with the formation in 1937 of a labor organization among its employees known as The Alkali Employees Federation, Inc., herein called the Federation; and (2) by these and various other acts and statements of their officials and supervisory employees, both in 1937 during organi- zational attempts of a C. I. O. union, and in 1940 during organizational efforts of the union which filed the charge's in the present case, inter- fered with their employees in the exercise of the rights guaranteed in Section 7 of the Act. On October 3, 1940, pursuant to an extension of time granted by the Regional Director, the respondents filed an answer denying that they had engaged in any unfair labor practices as alleged in the com- plaint. The Federation also filed an answer denying that the re- spondents had dominated or interfered with its formation or admin- istration. Pursuant to notice, a hearing was held 'on October 10, 11, 14, and 15, 1940, at Painesville, Ohio, before Thomas S. Wilson, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondents, and the Federation were represented by counsel, and the Union by two representatives; all participated in the hear- ing. At the hearing all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing upon the issues. At the conclusion of the Board's case, counsel for the Board moved to strike from the complaint (1) the allegation in paragraph 7 (d) that "loyalty" statements were circulated in 1937 by the Vigilantes for employees to sign, and (2) the allegations in paragraphs 7 (e) and 7 (i) relating to certain alleged statements and conduct of John Briesemeister, one of Diamond's supervisory employees, and to amend the complaint and all formal papers 1 filed in the case to conform to the,proof. The motions were granted, with- out objection by the other parties. During the hearing the Trial Examiner made rulings 'on several other motions and on objections to the admission of evidence. The Board has reviewed the rulings 1 Where the context requires , Diamond Alkali Company is referred to as Diamond and Standard Portland Cement Company is referred to as Standard. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Trial Examiner and finds that no prejudicial errors were com- 'mitted. The rulings are hereby affirmed. On December 10, 1940, the Trial Examiner filed his Intermediate Report, finding that the respondents had engaged in and were engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act, and recommending that the respondents cease and desist therefrom and take certain specified ac- tion. On January 11, 1941, the respondents and the Federation filed exceptions to the Intermediate Report and briefs in support of their exceptions. Pursuant to notice duly served on all parties,,a hearing for the pur- pose of oral argument was had before the Board in Washington, D. C.,, on January 23, 1941. The respondents and the Federation were rep- resented by counsel, and the Union by its representative; all partici- pated in the argument. The Board has considered the exceptions to the Intermediate Re- port and the briefs in support thereof filed by the respondents and by the Federation, and, in so far as the exceptions are inconsistent with the findings, conclusions, and' order set forth below, finds them to be without merit. - Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Diamond Alkali Company is a corporation formed and existing under and by virtue of the laws of the State of Delaware. Standard Portland Cement Company, a corporation. organized and existing under and by virtue of the laws of the State of Ohio, is a wholly owned subsidiary of Diamond Alkali Company. The plants of Dia- mond and Standard here involved are adjacent to Fairport Harbor, Ohio. Standard's plant is located about a quarter of a mile from the Diamond plant. Diamond Alkali Company is engaged in the manufacture, sale and distribution of sodium alkali, laundry soda, soda crystals, baking soda, chlorine, coke, and artificial "gas. The principal raw materials used by this respondent in.the manufacture of its finished products are coal and limestone. Raw materials of the above-mentioned nature in excess of half a million dollars in value are purchased and used annually by the Company. Approximately 100 per cent of such raw materials come from without the State of Ohio. Finished products of said respondent in excess of one million dollars in value are pro- duced annually. In excess of 25 per cent of the above-mentioned finished products are sold and shipped in interstate commerce and outside the State of Ohio. DIAMOND ALKALI COMPANY 703 Standard Portland Cement Company is engaged principally, in the manufacture, sale, and distribution of cement. This respondent uses raw materials such as limestone and coal in excess of half a million dollars in value each year in the manufacure of its finished products. Approximately 100 per cent of such raw materials are secured from outside the State of Ohio. This respondent produces cement in any one calendar year in excess of $750,000 'in value, of which approxi- mately 60 per cent goes outside the State of Ohio, in interstate com- merce. Both respondents concede that they are engaged in interstate commerce. II. THE ORGANIZATIONS INVOLVED Federal Labor Union No. 22162, also known as Chemical Workers Union No. 22162, Painesville, Ohio, affiliated with the American Fed- eration of Labor, is a labor organization admitting to membership employees of the respondents. The Alkali Employees Federation, Inc., is an unaffiliated labor organization admitting to membership all employees of the respond- ents under the rank of departmental heads. III. THE UNFAIR' LABOR PRACTICES A. The history of the C. I. 0. organizational efforts; interference, restraint, and coercion In May 1937, O. F. Haring, a representative of the Federation of Flat Glass Workers of America, a labor organization then in the process of changing its affiliation from the A. F. of L. to the C. I. 0., began a drive among respondents' employees to organize a local union to be affiliated with the C. I. O. Paul Beebe, an employee of re- spondent Diamond, became the president of the local and assumed a leading role in its organizing activities. Briesemeister, superin- tendent of Beebe's department, soon learned of his position in the local and noted his organizational activities. With a day or two of these discoveries, Briesemeister approached Beebe and told him to stay in his department and attend to business. Beebe's actions were also reported to J. C. Hobbs, Diamond's vice president and general manager. By about the middle of June 1937, approximately 421 of respondents' employees had signed applications for membership in the Flat Glass Workers. On June 15, 1937, Beebe, four other employees who were officers of the C. I: O. local, and Haring, sent a telegram to Hobbs request- ing that he meet with them for the purposes of collective bargaining. The telegram stated that "a majority of your employees are members 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the .. . Flat Glass Workers of America" 2 and requested Hobbs to meet on June 15, 16, or 17 with Haring and the five officials of the - local.. The telegram concluded with the request that Hobbs' answer be sent to Haring, "a representative of the Flat Glass Workers of America." During the morning of June 17, Hobbs notified Beebe and the other four employees who 1iad signed the telegram that he would meet with them that afternoon pursuant to their request. Hobbs did not notify Haring of the meeting, because, so he testified, "We ,did not feel that we should be dealing with" Haring since he was a "competitor." 3 , When the meeting convened, Beebe told Hobbs that he had not complied with their request because Haring had not been notified and that he and the other union representatives were un- willing to proceed in the absence of Haring. However, Beebe asked if Hobbs "would recognize us as a union." Hobbs refused to grant such recognition. The minutes of the meeting, composed by Hobbs, state that "a full discussion indicated"' that Beebe and his colleagues "had been selected at a recent meeting" attended by about 38 persons, of whom about one-half were employees of respondent Diamond; - that "no official organization exists, there being no charter" and that in view of such facts Hobbs "then recognized these men as represent- ing a majority of certain eighteen (18) or nineteen (19) Diamond Alkali Company employees and as such they were entitled to speak if they could present credentials." Hobbs' minutes further stale that "without raising this question" in regard to the matter of credentials, the employees were asked individually and collectively what grievances they had; that the employees voiced no grievances except that Beebe stated that he could not talk without Haring, being present and that the foregoing "fully complies with the tele- graphic request for it meeting for the purpose of collective bargaining in accordance with the Wagner Act recited." Soon after the advent of the Flat Glass Workers, a meeting, at- tended by a number of employees, was held in Diamond's employment office during working hours. Bert Dubie, an electrician, who acted as chairman of this meeting, stated that its object was to pledge "loyalty to the company in connection with any labor disturbances." Plans were made at this meeting to circulate a statement to the-same effect throughout the plant for employees' signatures. At the close of the meeting, Hobbs and G. S. Rutherford, then plant superintend- ent of Diamond, came in and thanked the group for their loyalty and cooperation. This group became known as the-Vigilantes. 3 The respondents then employed between 1,300 and 1,400 employees. 3 Before becoming identified with the Flat Glass Workers , Haring had been employed by the Columbia Chemical Company, a concern engaged in the same type of business as the iespondents in Barberton, Ohio, about 65 mules-from the respondents' plants DIAMOND ALKALI COMPANY 705 As a meeting of the Vigilantes disbanded, Briesemeister went over to Beebe and said, "You better be careful what you are doing because there are about 400 men that are going to take you for a ride." 4 Under the circumstances, the vigilante movement, occurring as it did so closely in connection with the organizational efforts of the C. I. 0., can be construed only as an expression of hostility -against the "outside" union. We find, as did the Trial Examiner, in sub- stance, that the respondent Diamond, by allowing the vigilante meet- ings to take place on company property during working hours; by expressing, in the congratulatory, statements of its officials, its ap- proval of the movement; and by the warning conveyed to the presi- dent of the C. I. 0., Beebe, through his department superintendent, that Beebe might be subjected to violence if he were not careful, supported this movement and made it clear to the C. I. O. official and to the employees generally that this respondent opposed the organization of the C. I. O. We find that by these acts the respond- ent Diamond interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. After June 17, but not later than June 19, Beebe and his fellow officers received a charter from the Flat Glass Workers, which showed to their "dismay, that their organization was affiliated ' with the A. F. of L. According to Beebe's testimony, Haring was unable to con- vince the local officers that, despite the charter from the A. F. of L., the organization for which they had signed application cards was, in fact, a C. I. O. organization. At about this same period of time 13 employees were discharged for what many, of the employees con- sidered to be their activities on behalf of the Flat Glass Workers. Because of the events last mentioned, Beebe commenced to lose interest in the C. I. O. About 7 o'clock on June 19, while working, he asked his foreman, Turner, what would happen if he should drop out of the C. I. O. Turner immediately telephoned to Briesemeister at his home and told him that Beebe wanted to see-him. Briese- meister returned to the plant and after some conversation with Beebe, during which Beebe told him that he wanted to get out of the C. I. 0., telephoned to Hobbs' home requesting that Hobbs come to the plant. A short while later Hobbs appeared. The undisputed testimony of the three participants in this meeting establishes that Beebe expressed his willingness to abandon the C: I. O. and ,asked if there would be any reprisals because of his union activities. Hobbs answered that "there would be nothing done about it, because everybody makes mistakes, and that you can't blame a man for something he does not know anything about." During the conver- * It is not clear whether the meeting here referred to was the same meeting addressed by Hobbs and Rutherford, or a meeting shortly thereafter. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sation Hobbs stated to Beebe that "I never took a drink in my life, or I never swore, but I am telling you this union stuff is nothing but B. S." and that "Now is the time to strike, when the poker is hot," Following this there was considerable discussion about what Beebe should do with the signed C.. I. 0. application cards. Out of the welter of conflicting testimony on this subject, it is clear that there was talk of having a group of vigilantes "hold up" Beebe and take the signed application cards away from him.5 The parties were in disagreement as to how this subject arose and who made the sug- gestion. It is clear, however, that there was no effort made to put any such plan into effect. It is unnecessary to decide whether Beebe, Hobbs, or Briesemeister suggested that the cards be taken from Beebe: In either event, the testimony of Briesemeister and Hobbs as to the understanding with which the conference ended shows that Beebe was to "get together" with the other union officers for the ,purpose of "throwing over" the local organization. On June 24, over the name of Haring as representative of the Flat Glass Workers, there appeared in the local papers a paid advertise- ment stating that the charter would be installed at the regular meeting on June 25 and giving names of the elected officers of the local. On that same day, at the request of Beebe, a meeting was held between representatives of the respondents and officers of the C. I. 0. local. One of the men inquired whether they would be recognized ,as the representatives of the employees of the Diamond Alkali Com- pany. Hobbs again inquired whom the men represented, if they had any credentials and requested the names of the employees they desired to represent. The minutes of this meeting, as recorded by Hobbs, state that Hobbs had "already met with a committee repre- senting more than 90% of the employees." This reference was not explained at the hearing, but it is a fair assumption that the com- mittee referred to was'the Vigilantes' committee, as it was the only group other than the Flat Glass Workers in existence at the plant at the time. Hobbs informed the officers that the organizers were trying to sell the men something they did not have because the men had received an A. F. of L. charter after signing C. I. 0. application cards. Because of the fear engendered by the recent discharge of the 13 employees, a number of the employees present asked whether-in the future they would be let go one by one because of their recent union activities. - Hobbs' minutes read as follows : "Mr. Hobbs as- sured them that he had a great respect for anyone who makes an error and corrects it," and that he would not discriminate in any way 5 According to Beebe, the vigilantes were then to return the cards individually to their signers, by mail. DIAMOND ALKALI COMPANY 707 against anyone who performed his duties properly. - Thereafter cer- tain complaints about working conditions were discussed . Hobbs' minutes also state that at this meeting he repeated an announcement "which was made early in the day that each employee who had been with the Company three years would receive a vacation" and "indicated that a wage increase had been announced." 6 The clear implication arising from Hobbs' statement to Beebe -on June 19 and to the C. I. O. committee on June 24 was that it was a mistake on the part of the employees , requiring forebearance and forgiveness on the part of their employer , to belong to the C. I. O. or to be active on its behalf . We find that, by these statements of respondent Diamond's general manager, as well as by the unsolicited and derogatory reference to the Union made by the same official to Beebe on June 19, the respondent Diamond made clear to the em- ployees its hostility to the C. I. O. and encouraged them to repudiate their activities on its behalf , and thereby interfered with, restrained, and coerced them in the exercise of the rights guaranteed in Section 7 of the Act. On July 2, 1937, the following paid advertisement appeared in the local papers : NOTICE TO THE PUBLIC In last Thursday's and Friday's issues of the Telegraph there appeared a paid announcement, inserted by O. F. Haring, Rep. Flat Glass Workers Union, an affiliate of the C. I. 0., giving our names as officers . Due to misrepresentation of facts we want it known by the public that we are not connected with that organi- zation. We further believe that the workers in the Alkali Com- pany have nothing to gain by affiliation with such an organization. Signed : Paul Beebe, Emil Mar ninen, William Ulle, Leo Snidersich, John Drobnick, John Zalar, John Tuokkola, Elwood Sippola. Prior to the publishing of this notice, it had been brought to Beebe for his approval by a brother of one of the 13 discharged employees in an effort to secure his brother's reinstatement. After the publi- cation of this notice, there was no further activity on behalf of, the Flat Glass Workers in the respondents' plants. Briesemeister testified that "a week or two after it [the C. I. O. organization] was broken up, I think he [Beebe] said to me he was glad to get out of it, and he was done and would never join another union as long as he lived, and he was glad the thing was all washed up." However, in October 1937, Beebe joined the Federation. The record does not show whether these concessions were limited to employees of Dia- mond or applied to employees of both respondents. 4401 -15-42-Vol 30---46 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Interference with, domination, and support of The Alkali Employees Federation, Inc. Sometime in June 1937, Charles Guy, a foreman in the Standard -Portland Cement Company, said to Lloyd Brooks, an employee, "Well, I guess all you fellows are going to have to join the union .. . you don't have to but . . . I think most of you will." Brooks asked what union he was speaking of and Guy answered, "Just the com- pany union." Brooks inquired what it was all about, to which Guy repLed, "The C. I. O. is getting a bit too strong, and the majority of the men don't care for it, and they think this will be the way to keep it out." About 2 weeks later when the Federation began soliciting memberships, Brooks joined that organization. On or about July 4,1937, five employees of the respondent Diamond, Harry Carlton, Charles Smith, Joseph Gurley, John Braski, and Willard Spence, consulted Harold U. Daniels, an attorney in the neighboring city of Painesville, Ohio, about the formation of a union. At this time Spence was employed as a relief shift foreman. Re- spondents' answer admits that Braski was a supervisory employee. We find, as did the Trial Examiner, that Spence and Braski were supervisory employees.7 The other men did not hold supervisory positions of any kind. Daniels had been the attorney for a group which in April or May 1937 had formed the Chromate Employees Federation, a labor organization, among the employees of the Chro- mate Division, a part of the respondents' operations. In May 1940, Daniels became director of industrial relations for respondent Diamond. On July 6, 1937, Daniels filed with the State of Ohio articles of incorporation of a labor organization known as "The Alkali Em- ployees Federation, Inc." The five employees above-mentioned acted as the corporation's temporary trustees. These six men drew up a code of regulations and a constitution for the Federation. The pri- mary purposes of the Federatioli as stated in the constitution -were the following:, 1. To bargain collectively with employers . . . 2. To conduct such negotiations without being coerced, inter- ferred with or controlled by persons who are not employees in our plants and are ignorant of our problems; The constitution provided for a board of trustees composed of one trustee elected annually from each departmental unit in the plants by In their answer the respondents admitted that Braski had supervisory authority but alleged that he "did not take an active part in formulating the policies or in the selection of permanent trustees" of the Federation. X DIAMOND ALKALI COMPANY 709 members therein. This board of trustees elected its own officers, made rules and regulations of the Federation and had complete control and management of the business, funds, negotiations and property of the Federation "subject only to a vote of the general membership when such vote is asked for, at the option of such trustees and in a manner to be determined by them." The powers of the board of trustees were ,expressly limited by the constitution ip that it had no power to affiliate the Federation -with any other labor organization or labor union 8 and could call a strike only after a two-thirds vote of the board of trustees followed by a majority vote of the general membership. Membership in the Federation was limited to employees below the rank of departmental heads in the alkali industry who worked in Lake County, Ohio. The constitution provided for no meetings of the general membership of the Federation and expressly limited the management of the Federation to the board of trustees. Prior to July 7, 1937, the Federation had only five members, the five temporary trustees. On July 7, solicitation for members began. This was carried on openly in and out of the plants both during and out of working hours. Early in the campaign, Plant Superintendent Rutherford asked Employee Talcott, who had joined the Federation at the request of Dubie, the Chairman of the Vigilantes, how the Fed- eration was coming along in the yard department. After Talcott explained that it was not doing so well because Braski, in soliciting the employees, did not "explain the issues," Rutherford told Talcott that while he could not tell Talcott to do it, he wished that Talcott "would take hold and help the thing along." Rutherford "emphasized" that "the company would appreciate it." He ended the 'conversation by reiterating that he could not tell Talcott to do this. However, Talcott secured some application cards from' Smith, one of the temporary trus- tees, in the machine shop the following day, and commenced signing yard employees to membership in the Federation during working hours. In all he signed up about 50 or $0 employees. About a week later, Rutherford saw Talcott while he was signing up some laborers during working hours on company property, called him aside and asked him -how he was doing. Rutherford ended this conversation, also, by saying, "vow, remember, I didn't tell you to do this.," In the respondent Standard's cement plant about this same time, Plant Superintendent Harold Stevens told Employee Toppari that two men were coming down from the Diamond plant to see Toppari about a union, and that he would tell Toppari where to meet the men later. A couple of hours later, Stevens told Toppari that the 8 After two unsuccessful attempts, the constitution was amended in 1939 by the then trustees to allow affiliation upon a 2/a vote of the trustees and thereafter the % vote of the membership Such affiliation was never discussed by the trustees, however. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men would be in the stockroom, and that Toppari should go over there at 3: 00 p. in. As ordered, Toppari went to the storeroom at 3:00 p. in. where he met Smith and D'ubie who said that they were "organizing a union to keep-outside unions out." At this meeting plans were laid for holding an election of permanent trustees. Top- pari was appointed to help conduct the election. All of the above occurred during Toppari's working hours., On another occasion about this same time Stevens inquired at Lefelhoc, an employee of Standard, if he had joined the Federation. When Lefelhoc answered in the negative, Stevens said, "You must be a C. I. O. man," which Lefelhoc denied. Stevens then said, "It would be to the advantage of every employee working for the cement plant or the Diamond Alkali to join this company union." About a week later, upon learning from Lefelhoc that he had not joined the Federation, Stevens told him that every other electrician had joined the Federation and "If you don't join up, you can't be my friend any more." That same day Lefelhoc joined the Federation. Also, about the time of the Fed- eration's membership drive, Stevens approached Employee Adair while Adair was at work and said "I hear you are one of the agitators against this company union." Adair admitted that he had talked it over with other employees in the washroom, and that he was against it. There- upon Stevens said, "If I was you, I wouldn't talk so much in, the washrooms as [after] this." The membership drive of the"Federation had started on July 7 from a membership of five. On July 10, Carlton, a temporary trustee, presented Hobbs with a letter stating that the Federation member- ship then totaled approximately 500 employees and requesting "the right to bargain collectively with the officials of" Diamond. About f0 minutes later, Carlton was given a letter addressed to the Federation over the signature of J. C. Hobbs as general manager, reading as follows : - Your request for the right to bargain collectively for your members is hereby granted. A certified list of, those you represent is to be in, my hands by 3 :00 p. in., Monday, July 12, 1937. Hobbs testified that, on July 10, he was satisfied that the Federation actually represented quite a large inunber of employees. His memory of that meeting was extremely hazy. Hobbs made no inquiry as to the type of organization the Federation was or as to whether it had a charter. Although Hobbs "thought" that at this meeting he had checked a list of the Federation's members, it is clear from Carlton's testimony that the Federation,did not take a list of employees or the signed application cards to this meeting, and that Hobbs only inquired DIAMOND ALKALI COMPANY 711 as to the approximate number of members the Federation had. On July 12 the Federation, for the first time, presented a list of its mem- bers to the respondent. In making this list the temporary -trustees -excluded two or three employees who had signed Federation applica- tion cards on the ground that they were ""too close" to the manage- ment for membership in the Federation; subsequently the permanent trustees for the same reason refunded to some 50 salaried employees the dues they had paid in. Early in the history of the Federation, Carlisle Roth, who was then the chief clerk for Superintendent Prahl and Assistant Superintendent Gerber of Diamond's caustic department, asked Employee Kapostasy to join the Federation. Kapostasy refused to do so. Sometime later Relief Foreman Spence, one of the temporary trustees of the Fed- eration, approached Kapostasy with the statement that while Ka- postasy would not sign up for Roth, he probably would for Spence. Kapostasy again refused to join. _ Following the lead of, their superiors, -other of the respondents' foremen besides Spence solicited the employees to join the Federation. Foreman Keith asked Adair on the job if he had joined the Federation or if he was going to join. Adair answered that -he had not decided, whereupon Keith said, "I would advise you to join. You will be bet- ter off in the union than you would be if some outside union should happen to get in here and cause a whole lot of trouble." A few days later when Adair told Foreman Unson, in answer to the latter?s ques- tion, that he had not decided to join the Federation, Unson stated, "If an outside union gets in there, we won't have anything but head- aches." About 2 months later, Adair joined the Federation. Along with the solicitations by the supervisory force, ordinary em- ployees were allowed to solicit membership in the plants during work- ing hours with impunity. John Lynch, foreman in Diamond's mill room, watched Ben Polito have application cards signed on company property and on company time without saying anything about it. M. E. Allen, clerk in the toolroom at the Standard plant, kept a supply of application cards in the toolroom and requested men to sign them as they came to the toolroom. At the same time men signed application cards, they also paid their dollar annual dues. These dues were also •collected by the employees openly in the plant during working hours. Early in 1938 Superintendent Stevens told Employee Brooks that it was all right for him to collect Federation dues during working hours in the plant. Shift Foreman Roy Poad of the coke department of respondent Diamond admitted that on several occasions he acted as a conduit for dues payments from employees, in his department to -the Federation treasury. On one occasion early in 1938, Frank Mer- rill, an employee in the coke department, received his Federation mem- 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership card from Poad a day or so after having given Poad his dollar dues. This open solicitation of, membership and collection of dues for the Federation continued during the years 1937, 1938, 1939, and up to the time of the hearing. Prior to August 2, 1937, the Federation conducted an election of permanent trustees among its members in the various departments of respondents' operations. This election, and those following it, at the end of 1937, and in 1938 and 1939, all followed much the same pattern. Notices of the elections were posted on bulletin boards and in the washrooms. Nominations were made on slips posted through- out the plants. The elections were conducted on company property. In some departments the balloting was conducted right in the depart- ment; while in others the ballot boxes were placed in the timekeeper's office, in garages owned by the companies and located on company property, or in automobiles standing on company property. In the yard department a Federation member carried the ballot box to various places around the plant where the employees of that department were working. Each ballot box in the 1937 election was in charge of some member of the Federation appointed by the temporary trustees. Part -of the work of these election officials was done on company time and part was done on their own time. Part of the voting was done on company time and part on the employees' own time. Respondents made no objection to the manner in which the elections were conducted and made no effort to prevent balloting either on company time or - property., In the 1940 election, held shortly before the hearing in this case, ballots were distributed to the men at their working places together with envelopes addressed to the Federation in which the marked ballots were to be mailed to the Federation's office in Painesville, Ohio. In 1937 the trustees requested a working agreement . with the re- spondent Diamond. They drafted a proposed contract containing a proposed wage scale which they presented to that company. No work- ing agreement, was signed until March 15, 1938. During one of the negotiating meetings, a trustee suggested to General Manager Hobbs that "we ought to do something more for the men, for the simple reason that the C. I. O. might come in again, if we didn't.", Hobbs replied, "Let them come in. We will shut down the diamond crystal, chromate and some other operations that are not paying us." On March 15, 1938, the respondent Diamond and the Federation signed and executed the first so-called working agreement. The agree- ment as executed applied only to members of the Federation and con- tained the'following clauses: _ The present policy of paying high wages small be continued as, long as business conditions justify it. DIAMOND- ALKALI COMPANY 713 The hours of employment shall be in conformance with the best practical operating schedules so as to maintain the maximum benefits to the members of the Federation and the Management. The number of hours per week shall conform to legal restrictions. Seniority rights shall be effective after one year's continuous service for the Company, and in all cases of promotion, decreases or increases of forces the following factors shall .be considered: length of service, knowledge, training, ability, skill, efficiency, family status, number of dependents, etc. The above clauses are characteristic of the whole 5-page agreement. The only definite article in the agreement is the grant of, vacations with pay to men who had been continuously in the service of the Company for '3 years or more,, a concession granted to the employees by unilateral action of the respondent Diamond on the morning of June 24, 1937, the day of the meeting with the Flat Glass Workers Union. At least two such working agreements have been executed between the re- spondent Diamond and the Federation. On January 18, 1940, the respondent Diamond and the Federation executed the present working agreement which is still 5 pages long. There are only minor changes from the original 1938 agreement.9 During its early history, the Federation at one time enjoyed a mem- bership of between 1200 and 1400 members., At that time it repre- rented almost all of the respondents' employees. At the time of the hearing, the Federation's membership had fallen off to approximately 600 members. It is clear that the respondents helped instigate the formation of a drive against outside unions, by the open approval given to the Vig-, ilante movement in allowing that group the use of company property, and by oral expressions of approval made by Hobbs, respondent Dia- mond's general manager. Stevens, superintendent of Standard's ce- ment plant, aided in the formation of the Federation by ordering an employee to attend a meeting on company property where the pro- motional plans of the Federation were laid. Diamond's superin- tendent, Rutherford, made the Company's desires clear to the employees by asking Employee Talcott to assist in the membership drive for the Federation; Rutherford and Stevens, further, personally solicited 9It was stated at oral argument by counsel for the respondents that the contracts above referred to extend to employees of respondent Standard . No meetings were ever held at which these proposed agreements were presented to the membership for discussion See In the Matter of Aluminum Products Company, et at, 7 N. L R B 1219, enforced as modified in National Labor Relations Board v . Aluminum Pi oducts Company et at, decided March 4, 1941 (C. C. A. 7). 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees to join the Federation. Throughout the life of the Federa- tion, as we have shown, and as will hereinafter further appear 10 the respondents expressed opposition to "outside unions." The respond- ents, by acquiescing in the Federation's free use of plant facilities for its own purposes, and at the same time opposing nationally affiliated unions, gave clear and convincing evidence to be seen by all employees, of the respondents' desires in the matter. From the actions of re- spondents' top ranking officers to those of the lower supervisory staff, respondents' attitude was brought'home to the employees in an unmis- takable and forceful manner. Although the respondent Diamond, on July 7, 1937, 'posted notices ,containing pertinent sections of the Act and concluding with the statement that "the Management has always abided by the terms of this law and must,continue to comply with the law," the evidence estab- lishes that at the time these notices were posted and thereafter the policy, of both respondents was not one of compliance with the Act. In view of the continuation of the anti-"outside"-union activities, it is clear that the notices constituted no more than lip service to the principles of the Act. 'We find, as did the Trial Examiner, that the respondents have dom- inated and interfered with, the formation and administration of the Federation and have contributed support to it; "'and that by said acts, and by the statement of Hobbs made to the negotiating commit- , tee of the Federation, that the respondents would close certain of their plants if the C. I. 0. should "come in," the respondents have inter- fered with, restrained, and coerced their'employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that the Federation is incapable of serving as a free collective bargaining agency of the employees, and that the contracts granted to the Federation by the respondents are not the result of bona fide collective bargaining between the respondents and the freely designated representatives of their employees, but were executed by the respondents in furtherance of their program to foster the Federation. C. Interference, restraint and coercion; further assistance to the Federation Following the paid advertisement dated July 2, 1937, the Flat Glass Workers went out of existence.- Thereafter no outside union attempted to organize the respondents' plants until the fall of 1939, 10 See Section -III C, infra.. " See National Labor Relations Board v Link-Belt Company, 311 U. S . 584, reversing modification of Board's order in 110 P. (2d) 506 (C. C. A 7), enforcing as modified 12 N. L. R. B. 854. DIAMOND ALKALI COMPANY 715 when a group of employees began organizing under the A. F. of L. On October 5, 1939, a federal labor union known as Chemical- Workers Union No. 22162, Painesville, Ohio, was chartered directly by the American Federation of Labor. Kenneth C. Pangborn, an employee of Standard, became the president of the Union. There was some solicitation for and talk about the A. F. of L. union in the plants. Sometime in October 1939, during a conversation at the plant, with Employee Liikila, who was not then a member of the Federa- tion, Foreman Poad of the Diamond coke plant stated that he could not see where the men would benefit any by the Union, and that he thought unions caused a lot of trouble, but that if one wanted to belong to them it was all right. Frank Zack, a charter member of the Union, who during this period was employed at the chromate plant, discussed the Union with other employees and talked "in favor" of it. In February 1940 he was told by his foreman, Malone, that R. O. 'Mongan, who was in charge of the chromate division, had'sent word to Zack to the effect that Zack and another employee were "talking too much about A. F. of L." in the plant and that it would -have to stop. Zack appears to have been on fairly friendly terms with Malone; neither Malone nor Mongan were called to testify whether or not such an order was actually sent. Even a friendly statement from Malone, however, whether true or not, that Malone had received orders for Zack to cease his activities on behalf of the Union, must have conveyed to Zack, in terms of an order from his supervisor, a warning to discontinue his, activities for the Union. In the light of the respondent's tolerance of Federation activities on company time, moreover, the statement constitutes further expression of their hostility toward outside unions. On March 12, 1940, Liikila, who had been working as a night switchman, was laid off. The following morning he went to see J. L. Boone, superintendent of the Diamond coke plant, who ex- plained that Liikila was furloughed because of the lack of work. Liikila requested that he be put on a laborer's job as he had more seniority than some of the laborers. Boone refused, saying that the Company was not yet through laying men off. During the in- terview, Liikila volunteered the information that he was a member of the Union, to which Boone answered "I am surprised that you told me so." After Liikila had stated that if his membership in the Union was the cause of his lay-off, he was all through with the Union, Boone told Liikila to return in the morning and,see him again. During their-conversation, Boone told Liikila that if an out- side union came into the plant "you would be out on strike more than '716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the time you would be working, and regardless of whether you worked steady or not, your dues are the same, and sometimes you pay just as much dues as you make, or as you earn," and that he would like to see all the employees 100 per cent in the Federation. Three days there- after Liikila returned and was given what he considered a less desirable job than his switchman's job, which apparently had been eliminated. About February 20, 1940, John Merrill, foreman in Diamond's process department, said to Employee Edds, 'with reference to the Federation, "I can't tell you to join ..., but it would be a good thing aiid it is only a dollar,'ai d the company is giving a bonus and vaca- .tions,.and they don't have to do it, and it is possible that they might stop it." Merrill also informed Edds that he was going to talk to several other employees about the same matter. However, Edds joined the union. At a-meeting of a number of employees held ' in July 1940, by Diamond 12 to distribute prizes for valuable suggestions made by em- ployees, General Manager Hobbs made a talk in which lie described a speech made a few nights before at an A. F. of L. meeting by Cole- inan Claherty, an A. F. of L. representative, as being 40 per cent lies and 60 per cent profanity. It is also undenied that in this same speech Hobbs stated, "At least it is so said, that Coleman Claherty sold out the rubber workers in Willoughby and I think he had a hand in Akron." The implications of Hobbs' speech must have been clear to his listeners. - Early in April 1940, John Cadwell, ari employee of Standard, had a conversation with B. H. Taylor, Standard's employment manager. `Cadwell had been hired by Taylor shortly before the conversation occurred, but had not reported for work at the time. Taylor told him "that if any of these union fellows come around, to stall them" ofF." Again following the lead of their superiors, various foremen spoke -disparagingly of outside unions. Kapostasy, an employee of Diamond and a charter member of the Union, spent part of his vacation in May 1940 passing out A. F. of L. handbills in the public street near' respondents' plant. He was seen in this endeavor by his foreman, Averill, and the subject also came to the attention of his assistant superintendent, Gerber. On the day he returned to work, he was assigned to a job paying 96 cents per day less than his regular job. When he complained to Gerber that a newer employee had his regular job, Gerber replied, "That is the way things were arranged." While Kapostasy was working at the lower paid work that day, Foreman '' Whether respondent Standard or its employees participated in this meeting is not clear from the record. DIAMOND ALKALI COMPANY 717 Killinan of the caustic department came by and said, "I am certainly surprised at your passing out handbills. I didn't believe you were that kind of a fellow." Foreman Averill and Assistant Superin- tendent Gerber testified that in making out schedules for that day, they misjudged the amount of work there-would be to do upon Kapostasy's regular job, and therefore Kapostasy was given the next best job. The following day Kapostasy was returned to his regular work. We find that the respondents, by the foregoing statements of their supervisory employees, discouraging membership in the Union, dis- paraging the Union and its representative, and encouraging member-' ship in the Federation; and by the order conveyed to Zack to cease his activities on ,behalf of the Union, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents as "set forth in Section III above, ,occurring in connection with the ,operations of the respondents de- :scribed 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 Since we have found that the respondents have engaged in unfair abor practices; we shall order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondents dominated and interfered with the formation and administration of the Federation and have con- tributed support to it, and that the Federation is'incapable of serving as a free collective bargaining agency of the employees. In order to permit the employees full freedom in self-organization, without hin- drance by reason of the respondents' unfair labor practices, we shall corder the respondents to withdraw recognition from the Federation as the representative of any of its employees for the purposes of col-' lective bargaining and completely to disestablish the Federation as such representative. We have further found that the contracts granted to the Federation by the respondents are not the result of bona fide collective bargaining between the respondents and the freely designated representatives of their employees, but were executed in furtherance of their program to foster the Federation. We shall order the respondents to cease and desist from giving effect to the contract of January 18, 1940, or any 718 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD extension , renewal, modification , or supplement thereof, or any super- seding contract which may now be in force . Nothing in this Decision and Order shall be taken to require the respondents to vary their wage- or seniority and other substantive features of their relations with the employees themselves which the respondents established in perform- ance ' of the invalid contract as extended ; renewed, modified , supple- mented, or superseded. Upon the basis of the foregoing findings of fact, and upon the-entire• record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Federal Labor Union No. 22162, also known as Chemical Workers Union No. 22162, Painesville, Ohio, affiliated with the American Fed- eration of Labor; The Alkali Employees Federation, Inc.; and Fed- eration of Flat Glass Workers are labor organizations within the- meaning of Section 2 (5) of the Act. 2. The respondents, by dominating and inter-fering,with the forma- tion and administration of The Alkali Employees Federation, Inc., and by contributing support to it have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. The respondents, by interfering with, restraining and coercing their employees in the exercise of the rights guaranteed by Section 7 of the Act, have, engaged in and are engaging in unfair labor prac- tices 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. ORDER Upon the basis of- the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondents, Diamond Alkali Company and its wholly owned subsidiary, Standard Portland Cement Company, and their officers,, agents, successors, and assigns, and each of them, shall : 1. Cease and desist from : (a) Domnating or interfering with the administration of The Alkali Employees Federation, Inc., or the formit,tion or administra- tion of any other labor organization of their employees, or contrib- uting support to said Federation or any other labor organization of their employees; (b) Giving effect to the contract of January 18, 1940, with The Alkali Employees Federation, Inc., as well as to any extension, re- DIAMOND 'ALKALI COMPANY 719 reveal, modification, or supplement thereof, and any superseding con- tract with the said Federation which may now be in force ; (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the-purposes of collective bargaining or, other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will ^fiectuate the policies of the Act : (a) Withdraw all recognition from The Alkali, Employees Feder- ation, Inc., as representative of any of their employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours.of employment or other conditions of em- ployment, and completely disestablish the said Federation as such representative ; (b) Post immediately in conspicuous places in their plants adjacent to Fairport Harbor, Ohio, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their em- ployees,stating: (1) that the respondents will not engage in the con- duct from' `which they are ordered to cease and desist in paragraphs 1 (a), (b) and (c) above; and (2) that the respondents will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) File with the Regional Director for the Eighth Region, within ten (10) days from the date of this Order, a report in writing setting forth in detail the manner and form in which the respondents have complied herewith.