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Received June 8, 1939. NLRB Cin. Regional Office.

o: Mr. Phillips. Tom: Wagner. ubject: General.

JUNE 7, 1939.

A conciliator named Chappel (sp.) came in today to see what he could do. ater in the day he called me about Ohio Apex. He asked me whether we had he case. I told him we did. He then asked me whether he should see what he ould do with it-whether he should see if Jacobsen would meet etc. I told him hat wasn't for me to answer-Folio had charge of the situation and he would have to see Folio about any such matters.

I think that was correct?

To: Mr. P. G. Phillips.

From: M. Wagner.

DECEMBER 4, 1939.

Subject: Ohio Apex Company, IX-C-951, Investigation Report.

RECOMMENDATION

That the withdrawal sent in by the union be accepted and that the case be closed and adjusted on the basis of the settlement reached by the parties.

On April 22, 1939 the union filed charges against the company, alleging violations of Section 8 (3) and (5) of the Act.

THE COMPANY AND ITS BUSINESS

The Ohio Apex Company is a West Virginia Corporation. It is the successor to the Kavaloo Products Inc., an Ohio corporation formed in 1928, which failed in 1934. Mr. Andrew A. Payne is president of the corporation, and Bernard Jacobsen is secretary-treasurer and general manager. Basic raw materials used by the corporation are phosphorus chlorium coal tar acids, cellosalves, various types of alcohols and phthalic anhydride. Approximately 36% of the purchases of raw materials in the year 1938 were made outside of the State of West Virginia. The company's finished products are plasticizers used for coating and molding trades. In 1938 over 98% of the sales were made outside the State of West Virginia. The company is engaged in the manufacture of synthetic organic chemicals. It is located on a New York Central siding at Nitro, West Virginia, and makes its shipments by truck and by rail. It employs approximately 35 employees, of which three work in the office, three in the laboratory and one serves as a supervisor. The remainder are engaged in production and maintenance work.

THE ALLEGED UNFAIR LABOR PRACTICES

Intimidation, Coercion and Interference.

The sole charge of coercion was made by Lester Little and his father, O. C. Little, who alleged that Joe Fitzgerald, superintendent, on several occasions told them not to join the union. He supposedly made these statements at the dinner table at the Little's home where he was boarding. Lester Little stated that in the summer of 1938 Fitzgerald said that the men would get a vacation, but that some of them would not be called back after the vacation because they were members of the C. I. O. Later in the year, when the union became active at the plant, Fitzgerald supposedly said that the company did not want the C. I. O. and that any who joined up would be laid off. O. C. Little likewise stated that Fitzgerald warned him that any who joined the C. I. O. would be laid off as soon as the company found it out.

Fitzgerald vigorously denies that he made any such statements, or that he ever spoke to the Littles about the C. I. O. While there is reason to believe that the testimony of the two Littles is not reliable as to its details, it seems conclusive that Fitzgerald did speak against the C. I. O. at various times in the Little's household. Other members of the Little family, upon interrogation, specifically stated that Fitzgerald did talk about the union from time to time during dinner conversation. It should, however, be noted that there is no evidence of any anti-union conversation ever having taken place at the plant either during, or after working hours.

DISCRIMINATION

The union alleged that in February, 1939 the company laid off James P. Per F. H. Harrington, O. C. Little, and Herman G. Shambeln, because of their me ship in the union. It was stated that these layoffs took place only a few m after the union again attempted to organize the employees.

All four of the employees at the time of their layoff were working on an a num recovery process. They stated that at the time they were laid off the pany no longer had any aluminum for this operation, but that they had been pro ised steady work and that the company was able to run any product on the s machine with the "Darkoo". O. C. Little stated that Fitzgerald assured m steady employment when he engaged him on the aluminum recovery job.

The company denies the charge of discrimination and states that the men we laid off because the aluminum recovery project had been completed and there ar no further work for them to do. In support of their contention, the compa submitted a report of its aluminum operation which indicates that the last alunnum was recovered in February just before the men were laid off.

We will discuss each of the individuals involved very briefly.

James P. Pennick was hired by the company in December, 1938 and was a off on February 22, 1939. Two weeks after his layoff he found other employe at the American Viscose Company, Nitro. The new position he held is a better one than he had at the Ohio Apex Company, and he did not care to be reinstal or to have his case pressed.

Frank Harrington was hired on November 7, 1938 and was laid off on Februar 22, 1939. He was never available for interrogation as we shall see later. E case has been disposed of.

O. C. Little was hired on November 7, 1938 and was laid off on February 2 1939. He stated that when Fitzgerald gave him employment, he promised ha steady job. Shortly after he joined the union, Fitzgerald called him into the of and told him he was laid off. When he gave him his check, he supposedly s "I told you not to mess with the C. I. O."

Fitzgerald denied that he promised O. C. Little a steady job, or that he to him that he was laid off because he was active in the C. I. Ö. The company s tends he was laid off solely because the aluminum recovery operation on #5tLittle was working had come to an end.

Herman Shamblen stated that he had been employed by the Ohio Apex Compa for about four years and that in July of 1938 he was laid off. At that time he s been active in the C. I. O. and had believed that his union activity was respons for his layoff at that time. However, as a result of conferences between representatives and the management, he was put back to work on December 1938 on the aluminum recovery project. He again became active in the C.I and signed up a large number of the men. When the union local was set up, was elected vice president. Then on February 27, 1939, he was laid off He alleged that at the time he was laid off Mr. Jacobsen told the men that they sh hurry with the aluminum recovery project because there was a great deal of othe work to do.

It is apparent that the company's story, that the men were laid off because! aluminum recovery project had come to its end, is correct. The testimota O. C. Little and his son Lester is most unreliable. It was constantly cha upon interrogation and at times was inconsistent. In the face of such test m the company's contention must be accepted.

THE ALLEGED FAILURE TO BARGAIN

Early in March, 1939, the union requested a meeting with the manageme the purpose of collective bargaining. The company agreed to meet with the Union and between March 7, 1939 and March 27, 1939, eight meetings were 1é No agreement was reached because the union asked for a closed shop, a chekand an increase in wages. These the management would not grant. Hodeie an agreement had been reached on the question of hours, seniority, vacation an grievance procedure. When the management refused to grant the other core sions asked by the union, the union notified Mr. Jacobsen that it was geg strike and did so at the end of March.

The union alleged at the time it filed its charge that the company refused that gain with it in good faith because Mr. Jacobsen gave no answer as to whether he would enter into a written agreement with the union. When the question #& broached, he simply stated they would have to wait until they had come to *-

eement on all the substantive provisions. He would then see whether or not could be embodied in written form.

The evidence in the case indicates that the company did bargain with the union good faith and that the strike which took place at the end of March was an empt on the part of the union to force the employer to accept certain provisions ich it felt were necessary. It was not a strike caused by an unfair labor practice. After being out on strike for a period of two months, the union called off the ike and the men returned to work. At the time the men returned to work the ion did not represent a majority of the employees, so the company was not liged to bargain with it since the strike was not caused by an unfair labor actice.

COMPLIANCE EFFORTS

During the strike and for some months thereafter, efforts were made to obtain ompliance. The company agreed to reinstate Herman Shamblen and did so ortly after the strike was called off and agreed to offer employment to F. H. arrington. Harrington, however, never made another appearance at the mpany's plant, so he could not be reengaged. The company refused to take ack O. C. Little because he purchased a store. It was the company's policy ot to employ individuals who were engaged in their own economic enterprise nd for that reason, refused to take him back.

The negotiations for compliance continued over a period of some months and inally, at the end of November, the union agreed to withdraw the charge when he company agreed to meet with the union and negotiate with it for its members only. All the issues in the case have now been disposed of inasmuch as Pennick as found other substantially equivalent employment. Harrington and Shamblen were offered reinstatement and there is no evidence to support the charge that D. C. Little was discriminated against.

MW:MR.

N. L. R. B. EXHIBIT No. 391-AAA

JUNE 5, 1939.

Re: Standard Ultramarine.

E. A. MARSHALL, Esq.
Fitzpatrick, Brown and Davis,

First Huntington National Bank Bldg., Huntington, W. Va.

DEAR MR. MARSHALL: I am in receipt from George Ansell of a Decision of the Board of Review of the West Virginia Department of Unemployment Compensation, in the case of Riley Clovis Jenkins. Mr. Ansell sent it to me without comment. I should appreciate any statement you might have to make with regard thereto.

Very truly yours,

PHP:RSM:GG

Mr. GEORGE ANSELL,

PHILIP G. PHILLIPS,
Regional Director.

N. L. R. B. EXHIBIT No. 391-AAB

50 A Street, Huntington, W. Va.

JUNE 5, 1939.

DEAR MR. ANSELL: This will acknowledge your letter of June 1st, enclosing a Decision of the Board of Review of the West Virginia Department of Unemployment Compensation. I am notifying the company that you have sent this

to me.

Yours very truly,

PGP:RSM:GG

PHILIP G. PHILLIPS,
Regional Director.

N. L. R. B. EXHIBIT No. 391-AAC

WEST VIRGINIA

DEPARTMENT OF UNEMPLOYMENT COMPENSATION

BOARD OF REVIEW

25 CAPITAL CITY BUILDING, Charleston, West Virginia.

LETTER OF TRANSMITTAL OF DECISION OF APPEAL TRIBUNAL

Claimant's name: Riley Clovis Jenkins. Social Security account number 234-05-2825. Claimant's address 910 26th St., Huntington, W. Va. Date d Claim Apr. 10, 1939. Employer's name: Standard Ultramarine Co., Registr tion number -. Employer's address: Huntington, W. Va.

We enclose a copy of the decision of the appeal tribunal on this claim. The decision will become the final decision on this claim unless you file a fire appeal to the Board of Review.

If you have any question as to the effect of this decision or as to whether y may appeal to the Board of Review, you may consult the local employment offe If you take a further appeal it should be filed at the local employment of within 20 days after the date on which this notice is mailed to you. May 17, 1939, Date of mailing this decision.

By

APPEAL TRIBUNAL,
C. W. FREEMAN,

Member Board of Review, W. Va. Dept. of Unemp. Comp

June 6, 1939, date by which further appeal may be made.

In the matter of: Riley Clovis Jenkins, 910 26th Street, Huntington, W. Vs SS No. 234-05-2825. Employer: Standard Uultramarine Co., Huntingte W. Va. A. T. Case No. 277. Claim filed Apr. 10, 1939. Appealed May 2, 1939. Decided May 17, 1939.

This cause coming on to be heard before the undersigned Member of the Board of Review, sitting as an Appeal Tribunal, on the 15th day of May, 1939, at the office of C. W. Freeman in Huntington, West Virginia, on an appeal by the cis ant from the decision of James Brady, Deputy of the Huntington Office of the Department of Unemployment Compensation, the Trial Tribunal makes the following findings of fact, conclusions of law and decisions: APPEARANCES: Riley Clovis Jenkins, claimant, in person. No appearance by the Standard Uultramarine Company, Huntington, W. Va., the employer.

STATEMENT OF EVIDENCE

Claimant filed his claim for unemployment compensation on April 10, 1933 and filed continued claims regularly thereafter. He was penalized by the Dep for being discharged from his regular employment for good cause, and from t decision claimant filed his appeal to the Board of Review on the 2nd day of May 1939. His claim for benefits states that he was discharged. His separati notice filed by employer, states that he was discharged for absence from duty without proper notification to employer.

Ultramarine Company, Huntington, West Virginia, on April 3, 1939, and that he The evidence further discloses that claimant last worked for the Standard set kilns in the kiln department, and had been in their employ for a period of five

years.

Claimant testified that he was discharged because the boss told a lie on him. It would appear from the claimant's testimony that he absented himself fr his place of work after notifying his foreman that he would be absent and that obtained from his foreman permission to absent himself from work. Upon return to work he was discharged. Claimant further testified that he had bee engaged in this employment for five years, and, so far as he knew, his services were satisfactory, and no complaint or criticism had been made to him in regard to tas

work.

Employer, or no one in their behalf, appeared and testified at the hearing.

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From the foregoing statement of evidence, the only testimony produced at the earing, shows that claimant was discharged without good cause.

CONCLUSIONS OF LAW

Now, THEREFORE, upon the foregoing statement of evidence, findings of fact nd conclusions of law, it is adjudged, ordered and decreed that the ruling of the Deputy in penalizing claimant, be and the same is hereby in all respects reversed. Dated this 17th day of May 1939.

C. W. FREEMAN,

Member of Review, West Virginia Department of Unemployment Compensation, sitting as an appeal tribunal.

N. L. R. B. EXHIBIT No. 391-AAD
FITZPATRICK, BROWN & DAVIS

First Huntington National Bank Building

HUNTINGTON, W. Va., June 6, 1939.

rjl.

Standard Ultramarine Company.

MR. PHILIP G. PHILLIPS, Regional Director,
National Labor Relations' Board,

United States Post Office and Court House, Cincinnati, Ohio.

DEAR MR. PHILLIPS: I am in receipt of your letter of the 5th.

The claim of Riley Clovis Jenkins came on for hearing before C. W. Freeman, Member of the Board of Review of the West Virginia Department of Unemployment Compensation, at a date subsequent to the hearing before you.

In view of the fact that Jenkins' testimony before the Board of Review of the Department of Unemployment Compensation was uncontradicted the Board had no alternative than to find that the claimant was discharged without good cause. The Standard Ultra-Marine Company did not appear before the Board in opposition to Jenkins' claim for the reason that it believed Jenkins' employment had been terminated and did not desire to place itself in the possible light of harassing a discharged employee. You can well appreciate that the Snyder case presented a different problem in that the act resulting in the discharge involved moral turpitude. Then, too, members of the Union in that case insisted that if Standard Ultramarine was to discharge Snyder it had a duty of prosecuting him.

Yours very truly,

E. A. MARSHALL.

N. L. R. B. EXHIBIT No. 391-AAE

In the Matter of Standard Ultramarine Company and United Mine Workers of America. Arbitration.

MR. ARTHUR MILTON SNYDER is not entitled to reinstatement. There is no doubt from the evidence that he stole aluminum strips on company property. Both union and management agree that regardless of the value of the material stolen, or other extenuating circumstances, discharge is mandatory under the contract when stealing occurs.

Purely in a mediatory capacity, the undersigned feels that discharge is too severe a remedy for Mr. Snyder's offense. His long years of faithful service, and the facts connected with his family life, indicate that a suspension would serve all the ends of a discharge and would not be punishing the offender beyond all measure warranted by the offense. Trade agreements are made to be scrupulously observed-but their major purpose of ending industrial unrest cannot always be best served by insisting on a scholastic observance in situations involving facts which, had they been known to the parties at the time the agreement was executed, would doubtless have been made an exception to the rule.

Mr. CLOVIS JENKINS is entitled to reinstatement. It is clear he notified the departmental foreman that he was to be absent from duty. There is a sharp conflict in testimony as to whether he received permission to leave. It is true

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