Interchemical Corp.

In the Matter Of INTERCHEMICAL CORPORATION and UNITED CEMENT, LIME & GYPSUM WORKERS INTERNATIONAL UNION, A. F of L. Case No.10-C-°2157.Decided May 17,19419 DECISION AND ORDER On July 30, 1948, Trial Examiner Sidney Lindner issued his- In- termediate Report in the above-entitled proceeding, finding that the Respondent had not violated Section 8 (3) of the Act as alleged in the complaint and recommending that the complaint be dismissed insofar as it alleged such violations. The Trial Examiner found, however, that the Respondent had interfered with, restrained, and coerced its employees within the meaning of Section 8 (1) of the Act and recommended that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto.' Thereafter, the Respondent and the General Counsel filed excep- tions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds, and Murdock]. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor I Section 8 ( 1) and (3) of the National Labor Relations Act, which the complaint alleges was violated, are continued in Section 8 (a) (1) and 8 (a) (8) of the Act, as amended by the Labor Management Relations Act of 1947. 83 N. L. R. B., No. 95. 641 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that the Respondent, Interchemical Corporation, Albion Kaolin Unit, Standard Coated Products, Heph- zibah, Georgia, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form .labor organizations, to join, or assist United Cement, Lime & Gypsum Workers International Union, A. F. of L., or any other labor organiza- tion 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, or to refrain from any and all such activities-except to the extent that such right may be affected by an agreement requiring membership in, a labor organization as'a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its mine in Hephzibah, Georgia, copies of the notice attached hereto marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after being duly signed by Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of not less than sixty (60) consecutive days thereafter in conspicuous places, including- all-places where notices to employees are customarily posted. Reasonable steps 'shall be taken by the Re- spondent to insure that such notices are not altered, defaced, or covered by other material; (b) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of the receipt of this Order what steps the Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent discriminatorily dis- charged James Brooks, Joe Burch, James J. Gray, Leonard H. Parker, Shuman Skinner, Doctor S. Stewart, and Lester Stewart, and failed and refused and continues to refuse to reinstate Leonard H. Parker and James Brooks because of their membership in and activity on behalf of the Union and because they engaged in concerted activities with other employees for the purposes •of collective bargaining and other mutual aid and protection. In the event that this Order is enforced by a decree of a Court of Appeals there shall be inserted before the words, "DECISION AND ORDER" the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING.' INTERCHEMICAL CORPORATION 643 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations , to join or assist UNITED CEMENT, LIME & GYPSUM WORKERS INTERNATIONAL UNION , A. F. OF L., or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a con- dition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 of the Act. All our employees are free to become or remain members of this union or any other labor organization. INTERCHEMICAL CORPORATION, Employer. By --------------------------------- Dated -------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Clarence D. Musser, for the General Counsel. Mr. William R. White, of New York City, for the Respondent. Mr. L. T. Gourley, of Mobile, Ala ., for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed on February 17, 1948, by United Ce- ment, Lime & Gypsum Workers International Union, A. F. of L., herein called the Union, the General Counsel of the National Labor Labor Relations Board by the Regional Director of the Tenth Region (Atlanta, Georgia )' issued a com- plaint dated March 23, 1948, against Interchemical Corporation , herein called the Respondent, alleging that the Respondent had engaged in and was engaging 1 The General Counsel and his representative at the hearing are called herein the General Counsel. The National Labor Relations Board is called the Board. AWA DECISIONS OF NATIONAL LABOR -RELATIONS BOARD in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) of Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and, Section 8 (a),- (1) and (a) (3) of the Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136.' Copies,of;the .complaint, the charge, and notice of.hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the Respondent at'its clay mine and processing plant'at Hephzibah, Georgia, the only, plant involved in the present proceeding-; ° (1), discharge 9 named employees on or about November 26, 1946,' and thereafter failed and refused and continues to refuse to reinstate four of the said employees, namely James Brooks, ILonard'H.'Parker, Newton O. Packer, and Watson Parker,' because of their-I Membership in and activity on behalf of the Union and because they engaged in, conc-er edIactivities with other employees for the purposes of collective bar- gaining,and;other mutual aid and protection; and (2') by}its, officers,,agents, and' employees,, mole particularly by A. C. Carpenter and J. H. Weatliersbee, from November 25, 1946, to date, interrogated its employees concerning their union affiliations and activities and threatened and warned its employees to refrain ' from assisting, becoming members of or remaining members of the Union. ' The Respondent's answer; duly' filed, admitted the jurisdictional allegations of the complaint as to commerce, but denied that it had engaged in any of the alleged unfair labor practices. The answer also asserts 'that' as soon as work will become available it will rehire the men qualified for such work. Pursuant to notice, a hearing was held on May 25 and 27, 1948, at Augusta, Georgia, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel ; the Union by its organizer. All parties participated in the hear- ing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence pertinent to the issues. At the conclusion of the General Counsel's case-in-chief, the Respondent moved the dismissal of the complaint on the following grounds : that there was no sub- stantial evidence to show that the motive for the discharge of the nine men was to discourage union activities ; that the General Counsel did not have authority to issue a complaint herein because the unfair labor practices upon which the second amended 'charge is based occurred more than 6 months prior to the filing and service of said charge' These motions were denied. At the conclusion of the evidence the Respondent renewed its previous motion to dismiss because of lack of proof, which was taken under advisement and is disposed of hereinafter. ' June 23, 1947, Public Law 101, 80th Congress, Chapter 120, 1st Session. To distinguish between the Act prior to amendment and after, the Labor Management Relations Act, 1947, is referred to at times as the Amended Act, or the Act, as amended. ° The Respondent 's clay mine at Hephzibah , Georgia, is a division of the Albion Kaolin Unit of Standard Coated Products Division, one of the operating units of the Respondent. ' The employees alleged in the complaint to have been discriminatorily discharged are James Brooks, Joe Burch, James M. Gray, Leonard H. Parker, Newton' O. Parker, Watson Parker, Shuman Skinner , Doctor S Stewart and Lester Stewart. 5 Since the date of the issuance of the complaint and prior to the date of the hearing herein , the Respondent reinstated Newton O. Parker and Watson Parker. e Section 10 (b) of the Act, as amended, so far as relevant here, provides that : . . . No complaint shall issue based upon any unfair labor practice occurring more than six ( 6) months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge . is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the INTERCHEMICAL CORPORATION 645 The General Counsel and the Respondent argued orally upon the record and were afforded the opportunity to submit briefs and proposed findings and/or conclusions of law Briefs were received from the Respondent and the General Counsel and have been duly considered. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Interchemical Corporation, is a corporation duly organized under and existing by virtue of the laws of the State of Ohio, and is duly au- thorized and licensed to do business in the State of Georgia. The Respondent maintains its principal office at New York, New York, and operates numerous factories, branches, and warehouses in various States of the United States, in- cluding New York, Illinois, Ohio, New Jersey, Alabama, North Carolina, Maine, and Georgia, where it is engaged in the manufacture, sale and distribution of various kinds of chemical coatings for protective and decorative purposes, printing ink, paint and industrial finishes, coated fabrics, textile coloring mate- rials, and related products. ' In the course and conduct of its business the Re- spbndent operates a clay mine and processing plant at Hephzibah, Georgia, where it is engaged in the mining and processing of clay. During the year 1947 raw materials, machinery, and supplies of a value in excess of $10,000 were purchased and shipped to the Hephzibah plant from points outside the State of Georgia, and for the same period the sales of clay products exceeded $100,000 more than 25 percent of which was shipped to points outside the State of Georgia. The Re- spondent concedes that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Cement, Lime & Gypsum Workers International Union, affiliated with the American Federation of Labor, is a labor organization which admits to membership employees of the Respondent. armed forces, in which event the six-month period shall be computed from the day of his discharge. In the opinion of the undersigned, Section 10 (b) of the Act, as amended, attached a limitation upon the issuance of complaints, effective prospectively, not retrospectively, from the effective date, August 22, 1947, and that as to unfair labor practices occurring prior to that date the statute permits them to be urocessed if charges were filed and served within' 6 months after the effective date of the Act, as amended. In the instant case the original charge was filed on December 4, 1946. In accordance with Section 10 (b) of the Act, as amended, the Regional Director for the Tenth Region, on June 27, 1947, sent a true and correct copy of the original charge to the Respondent by reg- istered mail. On July 11, 1947, a copy of the first amended charge, which had been duly filed on the said date, was sent to the Respondent by registered mail. Thereafter a copy of the second amended charge which had been docketed on February 17, 1948, was atttached to the complaint and served on the Respondent by registered mail on March 23, 194& Thus, it is clear that the original and amended charges were filed and served within the limitation period set forth in the statute and the General Counsel therefore had authority to issue the complaint herein. The Respondent's contention that the complaint is based only on the second amended charge and has no reference to any earlier charge and that since the second amended charge was filed on February 17, 1948, more than 6 months after the occurrence of the alleged unfair labor practices, therefore the complaint herein is faulty, is without merit. The fact is that the second amended charge contains the identical language as the first amended charge and the same was docketed and served timely on the Respondent. 844340-50-vol. 83-42 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Commencement of union organizational activities ; interference, restraint, and coercion; the lay-offs of November 27, 1946 On November 23, 1946, L. - E. -Gourley, general organizer for the American Federation of Labor, contacted several of the Respondent's employees in an effort to interest them in union organization and arrange for a meeting. So far as the record reveals, prior to Gourley's efforts to interest the Respondent's em- ployees in union organization, no -union attempted to organize them, nor does it appear that any of the employees were members of a union. The following day, Sunday, November'24, 1946, a me'eting'was held,on a creek bridge, a short distance from Hephzibah, attended by Gourley and about 20 of the Respondent's white employees. Sixteen of the employees signed applica- tions for membership in the Union and temporary officers were elected. On the morning of November 25, the employees reported for work about 15 minutes before their regular starting hour of 7 a. in., as was their custom, and gathered around the heater in the mechanic's shop. Present were a group of employees, some of whom had attended the union meeting, and J. $. Weathers- bee, the Respondent's head mechanic. A general conversation ensued regard- ing the union meeting of the previous day. Weathersbee asked several of the employees if they had joined the Union, and upon being advised that they had, he remarked, "before Mr. Carpenter [the Respondent's assistant superintendent] would operate under a union, they would fire every man that-was there and hire a new crew." Weathersbee also advised the men generally that they had better leave the Union alone and upon being told that the men had paid a $5 initiation fee to join the Union, stated that the union organizer needed some money and that was the only means he had of obtaining it.' Later that morning Allie J. Carpenter, the Respondent's assistant superintend- ent, while walking through the blacksmith shop, stopped to talk with George W. Burch, a repair man of clay cars. Carpenter asked Burch if he had attended the union meeting the day before. Burch said that he had. Thereupon Car- penter said "George, you fellows that attended union meeting , drop by the office this evening and get your time." Burch did not follow Carpenter's instruction, and continued to work, testifying that he saw Carpenter later the same day, that Carpenter was in better humor, and he merely passed off Carpenter's previous remark to him. ' It is the contention of the General Counsel that Weathersbee was a supervisory employee. Thus the General Counsel adduced testimony that employees went to him for advice on how to proceed with jobs and took orders from him as to which trucks to take out, or to transfer to in case of a breakdown. The Respondent testified that its supervisory hierarchy consists solely of Superintendent Lamar and Assistant Superintendent Carpenter. Because of the large area covered by the mine, Carpenter testified that he sends orders through keymen to the separate groups of men working at different locations. As such, Weathersbee gives orders to the truck drivers and employee Gale to the shovel crews Weathersbee is an hourly paid employee who spends practically all of his time on production as head machinist, except on the occasion when he is authorized by either Carpenter or Lamar to act for either or both of them, when they are away from the mine He does not have the power to hire, fire, or recommend disciplinary action to be taken against employees, nor, according to Carpenter, has he ever done so. Carpenter's uncontroverted testimony in this regard is credited. The undersigned finds that Weathersbee is not a supervisory employee. With respect to the anti-union and coercive statements made by Weatherebee during the general discussion of the Union by the employees, there is no proof that they were authorized or ratified by the Respondent. Nor is it clear that the employees considered such remarks as reflecting the Respondent's point of view. The undersigned therefore finds that they are not attributable to the Resnondent. ' INTERCIIEMICAL CORPORATION 647 At quitting time on November 26, Carpenter told 10 employees that he had to lay them off, that they would not have to work the next day but should return to^'the mine the following evening for their pay 8 Gray and Skinner testified that Carpenter told them that they'Were being laid off because the. Respondent had to do some repair work on its #1 Diesel shovel. Thomas Watson Parker and Leonard Parker testified that Carpenter told them they were being laid off because there was a railroad strike and the Respondent could not get sufficient cars'to'ship its'clay. Newton O•. Parker, the father,of Thomas and Leonard Parker, was told that he.-was, beipg•laid off because with tpe lay-off of his sons he would not have a conveyance to get to work. Lester Stewart testified that Carpenter told him only that he was included in the group that had to be laid off. Several weeks later when he sought reinstatement from Carpenter he testified that Carpenter told him that he was unable to get springs for the truck. Doctor Stewart testified that he was told he was being laid off because of repair work that had to be done on the air compressor. James Brooks testified that Car- penter told him he was included on the list to be laid off and was told by Car- penter that he might obtain some work at the Arsenal. When the'employees questioned Carpenter concerning the expected duration of the lay-off, they were given an indefinite answer and told that it might be 6 months or a year. The following morning, upon being informed of the discharge of the 10 em- ployees, Gourley talked with George Lamar, the Respondent's superintendent, and was told that the lay-offs were due to necessary repairs to equipment. After some further conversation during which Gourley told Lamar that he thought it was very strange that all union members were laid off,' Lamar answered that he felt the Respondent was capable of taking care of its own business. Lamar de- clined to honor Gourleys' request that the laid-off employees be reinstated. At 5 p. in. on November 27, in accordance with previous instructions, the laid- off employees reported at the mine office for their pay. They were paid in full for the week ending November 27, as'well as for the 3 days which had been with- held during the period of their employment, as was customaryl° James Brooks asked Lamar for separation notices for himself as well as for the other laid-off employees. Lamar said that he had not prepared them and could not do so then, but would mail them to the employees the next day Upon Brooks' insistence, Lamar had them prepared and distributed. After a few minutes Lamar asked several of the employees to return the notices of separation to him and in the cases of Leonard W. Parker, Shuman Skinner, and James Brooks, changed the item checked as the reason for separation, from "discharge" to "lack of work only." All of the notices of separation contained the statement in the detailed explanation of the reason for separation, "equipment shut down for repairs." 'Gourley held a meeting with the laid-off employees on November 27 when he told them that he had talked with the Respondent about the lay-offs but that 8Included in the group of 10 who were laid off were the 9 employees alleged in the com- plaint to have been discriminatorily discharged 9 The record does not reveal that all of the laid-off employees were members of the Union. In fact, of the 10 employees who were laid off on November 26, James Braswell, not alleged in the complaint to have been discriminatorily discharged, did not testify at the hearing heiein, nor did Joe Burch. It is not known, therefore, whether these 2 men were members of the Union. Skinner testified that he was not a member of the Union. 10 Lamar explained that the Respondent's workweek runs from Monday through Saturday and pay day was on Wednesday for the preceding week. The final pay of the laid-off employees included wages for Wednesday, November 27, even though they did not work that day. 648 DECISIONS OFVXATIONAL LABOR -RELATIONS BOARD the Respondent refused to put'them back to work. Despite this, Gourley ad- vised them to report for work on Friday morning (Thursday being Thanksgiving Day)'as though nothing had happened, and it was his thought that the,Respond- ent 'might 'reconsider its decision at that time. The employees reported for work as iisual'on Friday morning, November 29; and told Carpenter that they were doing so upon the advice of the union organizer. Carpenter remarked, in effect, that the union man did not have a thing to do with the Respondent's plant, and that he was getting his orders from Lamar. Carpenter gave all -of the laid- off employees typewritten recommendations, which set forth that the named em- ployee was released from the Respondent's employ "on account of working con- ditions and 'repairs to machinery" and that his work was absolutely, satisfactory. Carpenter told the men to keep in contact with him, and that if he could assist them in getting jobs elsewhere, to call on him" Seven of the nine alleged discriminatorily discharged employees were rein- stated to their jobs by the Respondent on various dates between February 17, 1947, and May 17, 1948, as will be discussed hereinafter. B. The contentions concerning the lay-offs of November 27, 1946, and the inter- ference, restraint, and coercion;' conclusions The General Counsel contended that the alleged needed repairs to the #1 Diesel shovel were seized upon by the Respondent as a pretext for the lay-offs and that this was borne out by the fact that in assigning reasons for the lay-offs of the various employees, the Respondent was inconsistent, telling some that the lay-off was due to necessary repairs to the shovel, and others that there was a lack of boxcars for the shipment of clay, and still others of its inability to obtain repair parts for truck, and, in the case of Newton Parker, that he did not have a conveyance to get back and forth from the mine. It is the further contention of the General Counsel, that whereas in the past, whenever the Diesel shovel was shutdown for repairs, no employees were laid off, therefore, the action of the Respondent in laying off its employees on Novem- ber 26, was merely a pretext for laying off employees who were members of the Union. Thus, evidence was adduced to show that in October 1946 the #1 Diesel shovel was shut down for repairs for approximately 1 week, and that during this period of the shovel shut-down, the employees who either worked on the shovel, such as the operator and oiler, or those who serviced the shovel, such as the truck drivers, truck spotters, and air compressor operators, were shifted to service #2 Diesel shovel or were assigned to assist in the repairing of the #1 shovel. The General Counsel also contended during the hearing that the fact that the Respondent paid off its employees in full when they were laid off, and checked as the reason for separation the item "discharged" rather than "lack of work only" on several of the separation notices, was proof that it had every intention to discharge rather than temporarily lay-off these employees. Also the proximity of the lay-offs to the union meeting was further indicia of the Respondent's desire to rid itself of the Union and of those employees who were members of the Union. The Respondent, on the other hand, contended that the men were laid off only because of the necessary shut-down of the #1 shovel for repairs. Thus Lamar testified credibly and without contradiction that the repairs to the #1 Diesel shovel had been contemplated since May 9, 1946, at which time it was discussed 21 Carpenter's testimony in this regard, which is uncontradicted, is credited. INTERCHEMICAL CORPORATION 649 with Carpenter and J. P. Broadbent, general manager of the Albion Kaolin Unit of the Respondent, who was on a periodic visit to the mine. On that occasion Carpenter brought up the general state of disrepair of the #1 shovel and it was Broadbent's advice that the shovel be repaired as quickly as possible, but that it be kept running until a backlog of clay was uncovered and stored in order to hold Respondent over any shut-down period that might be necessary to make repairs, or until the bad weather set in, for the reason that it cost the Respondent about a third more to operate the shovel during the winter months than during the ordinary dry weather. In July 1946, Carpenter again talked with Lamar about the condition of the #1 shovel, stating that he was afraid it would break down, but that he would continue to run it as long as possible to get enough clay uncovered. Lamar further testified that on or about November 20, 1946, he talked with Broadbent in the Respondent's New York office, advising the latter that a sufficient amount of clay had been uncovered to carry the Respondent through the period that might be required for repairing theeshovel ; that it was facing a serious boxcar shortage and was unable to obtain cars in which to ship clay and had to resort to truck shipments at increased expense ; that the coal strike was on, making it appear that business would not be too good ; and that it had just received parts for the repair of the shovel.32 Broadbent ordered Lamar to shut down the #1 Diesel shovel on November 26, which was the regular pay day for the men. Furthermore, the Respondent denied that it had knowledge as to which of its employees were union members. Lamar's uncontroverted, credible testimony is that he did not know that any of the laid off employees were union members or had been active in its organization. He stated that the first definite information he had of the Union's existence was on November 27, when Gourley talked with him about the lay-offs. Carpenter testified that while in Hephzibah on Saturday afternoon, Novem- ber 23, Frank Gray, a shovel operator for the Respondent, and a constable of the Village of Hdphzibah in his off hours, told him that some man was going to have a union meeting the following day. Gray did not mention the names of any employees who would attend. Carpenter stated this was the first time he heard of any efforts at union organization at the mine and "laughed it off as some- thing funny." Carpenter testified further that on the morning of November 25, while he was walking through the machine shop, he heard Skinner and George Burch discussing the union meeting of the previous day. Carpenter admitted that he then asked George Burch if he joined the Union, and upon being advised that he had, told him to stop by the office to get his time. Carpenter walked on through the shop and there is no evidence that he questioned any other employees regarding their union affiliations or that he made any similar remarks, of any other threatening, coercive, or anti-union statements to any other employees prior to the lay-offs. Carpenter's testimony in this regard which stands uncontradicted in the record, is credited. It appears clear from the record that the #1 shovel was shut down for repairs from November 27, 1946, to on or about January 28, 1947 ; that at about this same time the Respondent had at least 6 months of overburden removed from its clay deposits, giving it access to a 6 months supply of clay. It is also clear that all 12 An exhibit in evidence reveals that on August 12, 1946, Respondent ordered repair parts from the Marion Steam Shovel Company, Marion , Ohio, requesting immediate delivery. It did not receive the parts so ordered until October 5, 1946, and November 26, 1946, and on several dates thereafter. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the laid-off employees were generally assigned to some work in connection with the #1 shovel. Lamar testified that he and Carpenter agreed to reinstate the laid-off employees, if they could do the job required, before any new employees were. hired. The record reveals that the Respondent did not hire any new employees to take the jobs of those laid off, with one exception, I. e., a waterboy was hired on June 2, 1947. In explanation of the reason for paying off the laid-off men in full," Lamar testified that the work week at the mine runs from Monday through Saturday, with spay day on Wednesday for the preceding week's work. Maurice D. Cleary, the Respondent's director of industrial relations, testified that it is the Re- spondent's policy to pay laid-off or discharged employees in full and immediately remove them from the pay roll, for the reason that in a group insurance contract that the Respondent maintains for the benefit of its employees, paid jointly by the Respondent and the employees , if an employee is not removed from the pay roll and subsequently does not pay a premium, the Respondent becomes liable for such premium payment because the employee's name is continued on the pay roll. In order to avoid such liability the name is immediately removed upon lay-off or discharge. Lamar's testimony and Cleary's explanation are credited. Lamar admitted that when he first handed out the notices of separation to the laid-off men, the item "discharged" was checked as the reason for separation. He testified that when Carpenter came into the office and saw that one of the notices contained the item "discharged," Carpenter called to his attention the fact that the men were being laid off and not discharged. Lamar then asked several of the employees to return the notices for correction and they were so corrected. Lamar's uncontroverted testimony, which was corroborated in sev- eral respects by the General Counsel's witnesses, is credited. True, the sudden lay-offs on November 26, only 2 days after the first union meeting of the Respondent's employees, suggest a more than casual relation- ship between such union activity and the lay-offs. Another factor which tends to impugn the Respondent's motive in the lay-offs is Carpenter's statement to Skinner upon the latter's request for reinstatement about 4 weeks after the lay-offs, that he (Carpenter) could not lay off only employees who joined the Union unless he laid off somebody else.' While these factors smack suspiciously of a discriminatory intent on the part of the Respondent to rid itself of the Union and of those employees who were union members, matters of this kind may not be decided on suspicion, surmise and feeling, rather than on evidence. The question here is whether the Respondent actually was motivated by the? union affiliations and activities of its employees when it decided on a lay-off and in selecting the employees to be laid off. From the record as a whole it cannot be said that the lay-offs were unnecessary as a matter of business ex- pediency. Furthermore, other than Carpenter's admission that he questioned George Burch as to his union membership and allegedly in jest told him to report to the office for his pay,3° the General Counsel did not prove that the Respondent had knowledge of which employees were union members prior to 18 Newton 0. Parker was a waterboy prior to his lay-off and was not reinstated until May 17. 1948, the same day that his son Watson was reinstated. 14 As heretofore noted, the Respondent customarily withheld 3 days pay. 18 Carpenter's conversation with Skinner prior to his reinstatement on February 17, 1947, is discussed more fully in the following section and therein found to be violative of the Act. 18 George Burch, as found hereinabove, did not comply with Carpenter's instructions and testified that when later that day Carpenter appeared in better humor, he passed off the previous remark . George Burch was not laid off by the Respondent. INTERCHEMICAL CORPORATION 651 their lay-offs. Upon an analysis of the entire record," especially in view of the economic necessity for the lay-offs, and the fact that all of the laid-off employees were generally connected in servicing the shut-down shovel, the undersigned is unable to conclude that the General Counsel has established by substantial evidence that the Respondent was motivated by an illegal purpose in laying off the employees alleged in the complaint to have been discriminatorily discharged and it will accordingly be recommended that the said allegation of the com- plaint be dismissed.18 The complaint also alleges that the Respondent, by its officers, agents, and employees, more particularly by A. C Carpenter and J. H. Weathersbee, from November 25, 1946, or thereabout, to date, has interrogated its employees con- cerning their union affiliation and activities and has threatened and warned its employees to refrain from assisting, becoming members of, or remaining members of the Union. As heretofore found, Weathersbee was neither a supervisory employee, nor was he an agent of the Respondent when, during the course of a general union discussion with other employees he made several anti-union state- ments, which were not attributable to the Respondent. However, Carpenter's questioning of George Burch concerning his union membership was per se violative of the Act,19 and the undersigned finds that the Respondent by such conduct interfered with, restrained, and coerced its employees in violation of the Act. C. The reinstatements; other interference, restraint, and coercion Within a short period after the Respondent placed its #1 Diesel shovel back in operation, it began to reinstate the laid-off employees, in accordance with the policy testified to by Lamar. All of the laid-off employees were reinstated from February 17, 1947, to May 18, 1948, with the exception of Leonard H. Parker and James Brooks. As heretofore found, Carpenter instructed the laid-off employees on November 29, 1946 to keep in contact with him regarding reinstatement. Cleary testified without contradiction that the Respondent has no seniority rules in effect with respect to hiring laid-off employees but does so on the basis of efficiency and physical fitness. The record reveals that the majority of the reinstated employees complied with Carpenter's instructions, and did so keep in touch with Carpenter before they were rehired. Leonard H. Parker has been farming since his lay-off and has not sought reemployment. James Brooks like- wise never applied for reinstatement.20 Under all of the circumstances the 14 The undersigned has also considered the General Counsel's contention raised in his brief that there were a disproportionate number of union members included in the lay-off. The record reveals that, a total of 24 employees serviced the shovels and 16 of this group were union members Ten employees or 41 6 percent were laid off ; 41 .6 percent of 16 Is 6.65 Included in the lay-off were 7 union members. Can it therefore be said that this was a disproportionate number of union men laid off ? The undersigned does not think so and finds the contention to be without merit 11 See N. L. R. B. V. Goodyear Tire & Rubber Co., 129 F. (2d) 661 (C. C. A. 5) ; Matter of The Hays Corporation, 64 N. L. R B 406; Matter of Capital City Candy Company, 71 N. L. R B. 447. 10 Actual coercion of employees is immaterial to finding of conduct proscribed by Section 8 (1) of the Act . See Matter of Sewell Manufacturing Company, 72 N. L. R. B. 85; See also Matter of Morrison Turning Co., Inc., 77 N. L. R. B. 670; Matter of Ames Spot Welder Co. Inc., 75 N. L. R. B 352. With respect to questioning of employees regarding their union status allegedly in jest, see Matter of Fairmont Creamery Co., 73 N. L. R. B. 1380, aff'd July 14, 1948 (C. C. A. 10), 169 F. (2d) 169 20 On the day of the lay-offs, Brooks was arrested as a result of an altercation with another employee on the mine premises and for that reason never applied for reinstatement. ,652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undersigned finds that there was no duty on the Respondent to reinstate the laid-off -employees without their prior application. Although as hereinafter found, the Respondent did display an anticunion animus when Carpenter inter- viewed. several union members who applied for reinstatement there is no evidence that their, membership in the Union was a criterion considered in their reinstate- ment. , The undersigned therefore finds that the Respondent did not refuse to reinstate Leonard H. Parker or James Brooks because of their union membership or activities. Subsequent to the lay-offs, Carpenter, by his own admissions, learned con- siderably more regarding the prior union activity around the mine, he claimed, as a result of talk among the employees. James Gray saw Carpenter on several occasions in his efforts to obtain rein- statement. Gray testified that when he saw Carpenter at the mine a week before his reinstatement on March 1, 1947, Carpenter said "James, don't never fool with no more unions because the company won't stand to work under union. They would shut the plant down before they would work under union." Carpenter, testifying in contradiction to Gray's version of the conversation, stated that the,told Gray he thought he could use him in about a week, but that he wanted him to get one thing straight and that was that he was not to bring the union business on the job during working hours. Carpenter explained that he learned after the lay-offs. as a result of conversation around the mine, that some of the employees had been stopping trucks and discussing the Union during working hours, and that he was in effect warning Gray that he was not to carry on union affairs or discuss the Union during working hours. Carpenter denied that the Respondent did not want a union. Carpenter's version of this conver- sation with Gray is not credited. Lester Stewart, who saw Carpenter prior to his reinstatement on February 18, 1947, testified that Carpenter told him to come on back to work and to "keep my mouth shut about a union, that mess was about squashed" ; Lester Stewart testi- fied further that Carpenter said that the Respondent was not going to allow a Union and that Carpenter wouldn't work at the mine if there was a Union. Carpenter, testifying regarding his version of the conversation with Stewart, stated that after telling him to report back for work the following Monday, he said "but, now, Lester, I want to impress on you one thing when you come down here and go back to work, I don't want any of this on the job out there discussing the Union. Get that under your hat." He denied that he told him that the Respondent did not want a Union. 0 Junior Barton, an employee of the Respondent, and a nephew of Lester Stewart, who was present during the conversation, corroborated Lester Stewart's testi- mony. The undersigned credits Lester Stewart's testimony and finds that the conversation between him and Carpenter took place substantially as testified to by Lester Stewart. Shuman Skinner was reinstated on February 17, 1947. He testified that in a conversation with Carpenter prior to his reinstatement, he told Carpenter that he did not have anything to do "with this union business" and did not know why he was laid off. Carpenter, according to Skinner said "Well, I found out you didn't have any connection with it and I will put you back to work as quick as I can but I haven't got anything now." Skinner testified further that Carpenter told him he could not lay off only employees who joined the Union unless he laid off somebody else. Carpenter testified that when Skinner told him he was not a member of the Union, he replied, "Shuman, I can't help that,, whether you did or not. I don't know anything about who belonged to the Union and who INTERCHEMICAL CORPORATION 653 did not." He admitted that he told Skinner he had been advised that Skinner had not joined the Union but added that he stated that that did not make any difference. He denied that he told Skinner he could not lay off union men without laying off non-union men as well. Even though the undersigned in heretofore dismissing the allegations of the complaint that the Respondent dis- criminatorily discharged certain named employees, found that Carpenter did not then have knowledge as to which of the laid-off employees were union members, nevertheless, the undersigned is convinced that subsequent to the lay-offs, when Carpenter learned the extent of the union activity at the mine, he made the statements attributed to him by Skinner, in his endeavor to coerce Skinner re- garding future union membership and activity. The undersigned credits the testimony of Skinner and finds that the conversation between Skinner and Car- penter prior to Skinner's reinstatement took place substantially as testified to by Skinner. The undersigned finds that by the statements and conduct of Carpenter subse- quent to the lay-offs and in connection with the applications for reinstatement of the above-noted employees, the Respondent interfered with, restrained, and coerced its employees in violation of Section 8 (1) of the Act as reenacted in Section 8 (a) (1) of the amended Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as has been found to be unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violat- ing Section 8 (1) of the Act as reenacted in Section 8 (a) (1) of the amended Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found further that the allegations of the complaint that certain em- ployees were discharged and thereafter refused reinstatement because of their membership in and activity on behalf of the Union and because they engaged in concerted activities with other employees for the purposes of collective bargain- ing and other mutual aid and protection, are not supported by substantial evi- dence, it will be recommended that the complaint be dismissed as to these allegations. On the basis of the foregoing findings of fact and upon the entire record, the undersigned makes the following: CONCLUSIONS OF LAW 1. United Cement, Lime & Gypsum Workers International Union, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act as reenacted in Section 8 (a) (1) of the Act, as amended. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD •• 4. The Respondent has not engaged in unfair labor practices within the mean- ing,of Section 8 (3) of the Act, as reenacted in Section 8 (a) (3) of the Act, as amended, by laying off James Brooks, Joe Burch, James J. Gray, Leonard H. Parker, Newton O. ;Parker, Watson Parker, Shuman Skinner, Doctor S. Stewart, and Lester Stewart and by not reinstating James Brooks and Leonard H. Parker. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that Respondent, Interchemical Corporation, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) In any manner interfering with, restraining or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Cement, Lime & Gypsum Workers International Union, A. F. of L., or any other labor organization to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Post at its mine in Hephzibah, Georgia, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after being duly signed by Respondent's repre- sentative shall be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of not less than sixty (60) consecutive days there- after in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps should be taken by the Respondent to insure that such notices are not altered, defaced, or covered by other material ; (b) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the Respondent notifies said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the Respond- ent to take the action aforesaid. It is further recommended that the complaint be dismissed insofar as it al- leges that the Respondent discriminatorily discharged James Brooks, Joe Burch, James J. Gray, Leonard H. Parker, Shuman Skinner, Doctor S. Stewart, and Lester Stewart, and failed and refused and continues to refuse to reinstate Leonard H. Parker and James Brooks because of their membership in and ac- tivity on behalf of the Union and because they engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report or to any other part of the record or proceedings (including rul- INTERCHEMICAL CORPORATION 655 ings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further pro- vided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exception is filed as provided by the aforesaid Rules and Regulations , the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections and exceptions thereto shall be deemed waived for -all purposes. SIDNEY LINDNER, Trial Examiner. Dated July 30, 1948. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist UNITED CEMENT, LIME & GYPSUM WORKERS INTER- NATIONAL UNION, A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. INTERCHEMICAL CORPORATION, Employer. Dated--------------------------------- By------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.