International Agricultural Corp.

In the Matter Of INTERNATIONAL AGRICULTURAL CORPORATION, WALES, TENNESSEE, PLANT and INTERNATIONAL UNION OF MINE, MILL, AND SMELTER WORKERS In the Matter of INTERNATIONAL AGRICULTURAL CORPORATION, MT. PLEASANT, TENNESSEE, PLANT and INTERNATIONAL UNION OF MINE, MILL, AND SMELTER WORKERS, LOCAL No. 278 Cases Nos. C-1026 and C-1027.-Decided October 19, 1939 Phosphate Mining Industry-Interference, Restraint, and Coercion: ques- tioning employees regarding union activity ; persuading employees to refrain from joining or to resign from union-Discrimination: evidence insufficient to sustain findings of-Strike: involved-Agreement: to withdraw charges given effect in order to effectuate the policies of the Act-Order: entered requiring respondent to cease and desist its unfair labor practices at its Wales plant- Complaint: allegation of, that respondent engaged in or is engaging in unfair labor practices at its Mt. Pleasant plant, dismissed. Mr. Louis Libbin, for the Board. Mr. Thomas H. Peebles, Sr., of Columbia, Tenn., and Mr. C. P. Hatcher and Mr. William Waller, both of Nashville, Tenn., for the respondent. Mr. Van D. Jones, of Bessemer, Ala., for the Union. Mr. Ralph S. Rice, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On August 6, 1937, International Union of Mine, Mill, and Smelter Workers, herein called the Union, filed charges that International Agricultural Corporation, herein called the respondent, had en- gaged in unfair labor practices at its Wales, Tennessee, plant. On September 2, 1937, the Union by its Local No. 278 filed charges that the respondent had engaged in unfair labor practices at its Mt. Pleasant, Tennessee, plant. On April 28, 1.938, the National Labor Relations Board, herein called the Board, acting pursuant to Na- tional Labor Relations Board Rules and Regulations-Series 1, as amended, ordered that the two cases initiated by the aforesaid 16 N. L. R. B., No. 21. 176 INTERNATIONAL AGRICULTURAL CORPORATION 177 charges be consolidated for the purpose of hearing. On May 7, 1938, the Union by its Local No. 278 filed amended charges as regards the Mt. Pleasant, Tennessee, plant of the respondent. Upon the aforesaid charges and amended charges duly filed by the Union, the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated May 12, 1938 , against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 ( 1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat . 449, herein called the Act. Copies of the complaint , accompanied by notice of hearing, were duly served upon the respondent and the Union. In respect to the unfair labor practices , the complaint alleged in substance ( 1) that the respondent, while engaged at the Mt. Pleasant and Wales plants, at all times since on or about June 1, 1937, had continuously discouraged membership in the Union , solicited the withdrawal of membership of its employees from the Union, and attempted to destroy the Union by threatening employees with dis- charge and discrimination for joining or remaining members of the Union or engaging in activities in connection therewith ; (2) that the respondent by the aforesaid and by other acts had interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act; (3 ) that ,the respondent discharged William Hutton about May 28, 1937, from its Wales plant for the reason that he made application to join and assisted the Union and for said reason thereafter refused to reinstate him until August 15, 193't; and (4) that, upon the resumption of opera- tions at the Mt. Pleasant plant on about August 28 , 1937, follow- ing the termination of a strike , the respondent delayed and deferred the reinstatement of George Odom, Tom Green , Charlie Robinson, Robert Newcomb, Floyd Chapman , and George W. McAfee, and refused and continues to refuse to reinstate Sidney Johnson, Clarence Henson, Johnnie Lemay, Joseph E. Johnson , Clarence Kennedy, Herman Davis, E. C. Serrett, and William Keltner, for the reason that they were members of and active in behalf of the Union, and engaged in other concerted activities for the purposes of collective bargaining and other mutual aid and protection. On May 26, 1938 , the respondent filed its answer in which it denied the jurisdiction of the Board and in which it further denied that the respondent had engaged in the alleged unfair labor prac- tices. Pursuant to the notice, a hearing was held at Columbia, Tennessee, on May 27, 30 , and 31 and June 1, 1938 , before Henry J. Kent, the Trial Examiner duly designated by the Board. The Board, the 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent, and the Union were represented and participated in the hearing. Full opportunity to be heard, to examine and cross-ex- amine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing, counsel for the Board moved that the complaint be amended to include Wilson Chapman among those employees who had been refused reinstatement at all times following the termination of the strike at the Mt. Pleasant plant on about August 28, 1937. No objection was raised to this motion and it was granted by the Trial Examiner. Upon notion of counsel for the Board, the complaint was also amended to allege that Charlie Robinson had been refused employment at all times after on or about August 28, 1937. Upon. motion of counsel for the Board, the complaint was dismissed by the Trial Examiner in so far as it alleged that the respondent had discriminated against George Odom, Floyd Chapman, Tom Green, Robert Newcomb and George W. Mc- Afee. At the close of the Board's case and again at the close of the hearing, counsel for the respondent moved that the entire com- plaint be dismissed because of lack of evidence to sustain the allega- tions thereof. The Trial Examiner reserved ruling upon this motion. During the course of the hearing the Trial Examiner made several other rulings on motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 4, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the respondent and upon the Union. In his Intermediate Report, the Trial Examiner found (1) that the respondent had interfered with, restrained, and coerced its employees at the Wales and Mt. Pleasant plants within the meaning of Section 8 (1) of the Act; and (2) that the respondent had discriminated within the meaning of Section 8 (3) of the Act with regard to the hire and tenure of employment of William Hutton At the Wales plant and Sidney Johnson, Johnnie Lemay, Clarence Henson, and Clarence Kennedy at the Mt. Pleasant plant. He rec- ommended that the respondent be ordered to cease and desist from its unfair labor practices; to make whole Hutton for any loss of pay, suffered by reason of the discrimination against him; to offer John- son, Lemay; Henson, and Kennedy immediate and full reinstate- ment and to make them whole for any losses of pay suffered by reason of the discrimination against them; and to take certain other affirma- tive action to remedy the situation brought about by the unfair labor practices. The Trial Examiner denied in his Intermediate Report the motion made by counsel for the respondent at the hearing for a dismissal of the entire complaint because of lack of proof and upon INTERNATIONAL AGRICULTURAL CORPORATION 179 which ruling vas reserved, except in so far as the motion related to the allegations of the complaint that the respondent had discrim- inated against George Odom, Floyd Chapman , Tom Green, Robert Newcomb, George McAfee, Herman Davis, Joseph Johnson , Charlie Robinson , E. C. Serrett, William Keltner, and Wilson Chapman. The Trial Examiner granted the motion in so far as it related to such allegations. On November 17, 1938, the respondent filed exceptions to the Intermediate Report. On March 6 , 1939, it filed a brief in support of its exceptions . The Union filed no exceptions. Pursuant to notice duly served upon the respondent and upon the Union, a hearing for the purposes of oral argument was held on May 11 , 1939, before the Board in Washington , D. C. The respond- ent appeared and participated in the oral argument; the Union did not appear. The Board has considered the, exceptions to the Intermediate Report filed by the respondent and its brief in support thereof and in so far as the exceptions are inconsistent with the findings, con- clusions, and order set forth below, finds them to be without merit. Upon the entire record in the cases , the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a New York corporation having its principal office at Columbia , Tennessee. It owns and operates 23 fertilizer plants, including a plant located at Wales, Tennessee , and is finan- cially interested in 7 jointly owned fertilizer plants. It also owns and operates three rock-phosphate plants located , respectively, at Wales, Tennessee, Mt. Pleasant , Tennessee, and Mulberry, Florida. The present proceedings involve only the plants of the respondent located at Mt. Pleasant and Wales, Tennessee. At the Mt. Pleasant plant, the respondent is engaged in the mining of phosphate rock and the preparation of such phosphate rock for marketing . During the year prior to the hearing, the respondent purchased for this plant approximately $21,000 worth of supplies and machinery such as tramrails, tramcars , repair parts, pipes, bolts, and nails. Approxi- mately 50 per cent of such supplies and machinery was purchased outside the State of Tennessee . During the same period, the re- spondent purchased approximately $36,000 worth of coal for use at the Mt. Pleasant plant, all of which was obtained from the State of Kentucky. The Mt. Pleasant plant produces annually 'about 115,000 tons of phosphate rock having a sales value of approximately Igo DECISIONS OF NATIONAL LABOR RELATIONS BOARD $450,000 to $500,000. Approximately 70 per cent of such phosphate rock is sold and shipped outside of Tennessee. At the Wales rock-phosphate plant, the operations are similar to those carried on at the Mt. Pleasant plant. During the year prior to the hearing, the respondent purchased for such Wales plant approximately .$20,000 worth of supplies and machinery . Over 50 per cent of such supplies and machinery were obtained from outside Tennessee. During the same period, it purchased for the Wales plant approximately $23,000 worth of coal, all of which was obtained from Kentucky. The Wales rock-phosphate plant produces annually approximately 50,000 tons of lump rock having a sales value of $200,000 to $250,000 and 45,000 tons of ground rock having an approximate sales value of $200,000 . Approximately 75 per cent of the lump rock produced at the Wales plant is used in making ferti- lizer at the Wales fertilizer plant and most of the remaining 25 per cent is shipped outside the State of Tennessee. Approximately 80 per cent of the ground rock produced at the Wales plant is shipped outside the State of Tennessee. At its fertilizer plant at Wales, the respondent is engaged in the manufacture of phosphate fertilizer and complete fertilizers. The raw materials used in such manufacture are sulphuric acid, phosphate rock, fertilizer nitrates and potassium salts, sulphate of ammonia, caustic soda and soda ash. The sulphuric acid, which constitutes approximately 50 per cent of the total raw materials used, is pur- chased in Tennessee but is shipped to the plant by rail through Kentucky . The phosphate rock, which constitutes 35 per cent of the total raw materials used, is obtained from the respondent's rock- phosphate plant at Wales. Practically all the remaining raw ma- terials are obtained from outside the State of Tennessee . Over 50 per cent of the supplies and machinery parts for the fertilizer plant is also obtained from outside Tennessee. The Wales fertilizer plant produces annually approximately 20,000 tons of fertilizer . Approx- imately 75 per cent of the fertilizer is shipped outside the State of Tennessee. At this plant, there is also produced annually approxi- mately 2,000 tons of trisodium phosphate and 3,000 tons of disodium phosphate. Approximately 90 per cent of these products is shipped outside of Tennessee. The respondent employs at the Mt. Pleasant rock-phosphate plant about 150 to 160 persons, at, the Wales rock-phosphate plant from 100 to 120 persons, and at the Wales fertilizer plant about 80 persons. II. THE ORGANIZATION INVOLVED International Union of Mine, Mill and Smelter Workers is a labor organization affiliated with the Committee for Industrial Organiza- INTERNATIONAL AGRI(RULTUR.AL CORPORATION 181 tion, admitting to its membership employees in the mining and smelt- ing industry, except coal miners. Local No. 278 of the Union admits to its membership employees of the respondent at its Mt. Pleasant plant. III. THE UNFAIR LABOR PRACTICES A. Chronology of events at the Mt. Pleasant plant In the early part of January 1937, Mitchell C. Anderson, an inter- national representative and organizer for the Union , arrived in Mt. Pleasant . He interviewed workers in the various phosphate plants in the vicinity and explained the purposes of organization into a anion. During the latter part of January , the Union chartered Master 22 Phosphate Workers Local No. 278, which admitted to its membership employees of the respondent at the Mt. Pleasant plant and also employees at a number of the other phosphate plants in the vicinity. Officers of Local No. 278 were elected and the members of Local No . 278 at the respective plants selected two representatives, one being chosen by the white employees and the other by the colored employees , to serve on an executive board. Sidney Johnson and John H. Southhall were selected as the representatives from the Mt. Pleasant plant. The executive board served as the bargaining com- mittee of Local No. 278 and as such in April 1937 approached the officers of the respondent and requested a discussion relative to wages and working conditions. On May 7, 1937, representatives of the respondent and of Local No. 278 met and discussed a proposed contract submitted by Local No. 278. No agreement was, however, reached. At a meeting on about May 23, the respondent submitted to the representatives of Local No. 278 a counterproposal which was in turn submitted to the membership of Local No. 278 for consideration . At a meeting of Local No. 278 the counterproposal was rejected and the respondent was so informed at a meeting held about May 26. At the same time, the representatives of Local No. 278 submitted an additional proposal which the respondent rejected. It was agreed, however, that a meet- ing should be held on May 31 at which the respondent, the Federal Chemical Company, and Local No. 278 should be represented and at which a joint agreement covering the two companies should be con- sidered. At such meeting on May 31 no agreement was reached and the meeting was adjourned until June 11. Following the meeting on May 31, a meeting of Local No. 278 was held- at which the membership voted to go on strike at the Mt. Pleasant plant. A picket line was immediately established. As a result of the strike and the picketing, the Mt. Pleasant plant was closed down. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Notwithstanding the strike, the joint meeting was held as sched- uled on June 11 and subcommittees were appointed to consider ques- tions concerning wage rates and classifications. The subcommittees met on June 16 and partially worked out a wage scale. At a further joint meeting on July 30, the parties agreed upon wage scales and classifications. There was, however, apparently no agreement with regard to other matters in dispute and the strike continued in effect. During the course of the strike, there was initiated a movement to get the employees to resign from the Union and to return to work at the plant. Willie Woods, who was a common- laborer prior to the strike and who was promoted during the strike to a guard's position, was a leader in this movement. Judge L. H. Hammond, a Mt. Pleasant attorney, drafted a form for resignation from Local No. 278 and numerous such forms were signed by employees at his office. The evidence establishes that the respondent, through its officials and supervisory employees; participated in the attempts to get the employees to resign from Local No. 27S and to return to work. Wilson Chapman, an employee, testified that about the middle of July M. C. Dodson, a plant foreman, advised him to "get ready to go on back to work; let the union go; there wasn't anything to it"; that Dodson was at the time accompanied by Woods who stated that Chapman should "go over to Judge Hammonds and give up his union book" and "go on bacl. to work." He also testified that at a later date he overheard a talk between Oscar Dortch, the respondent's manager at the Mt. Pleasant and Wales rock-phosphate plants, and Woods, relative to a meeting at Dortch's home' to consider getting the men to return to work. Chapman testified that at that time Dorteh stated to him and Woods that the purpose of the meeting was "to see if they could get the scabs to go back to work, the men." J. W. Bailey and Willie Copeland, employees, both testified that during August Jesse Williams, assistant superintendent at the Mt. Pleasant plant, and Dodson both advised them that the respondent intended to resume operations at the Mt. Pleasant plant and that if they wanted to return to work they should carry their union books to Judge Hammond and get released. Everett A. Kennedy, an employee, testified that Williams and Adkin Burns, a foreman, tried during August to get him to return to work and told him "there ain't nothing to that thing, no how" and that he should go back to work. William Keltner and Robert Chum- ley, employees, testified to similar statements made by Dodson and Williams, respectively. Joe Johnson, an employee, testified that C. A. Irwin, plant superintendent at the Mt. Pleasant plant, tried during August to get him to return to work. INTERNATIONAL AGRICULTURAL CORPORATION 183 Although Williams testified that he did not tell any of the em- ployees to resign from the Union, he did not deny that he had talked with Bailey, Copeland, Kennedy, and Chumley. Dodson testified that he had asked various employees to return to work, but stated that he did so because he was off the pay roll himself. Irwin denied at the hearing that he had told any employees that they would have to quit the Union if they got their jobs back, but did not testify as to whether or not he had solicited employees to return to work. Dortch testified that Woods had on one occasion stopped him and arranged for several employees to see him at his office and that at such meeting he stated that "any time enough men wanted to go to work to justify the plant operating we were ready to start the plant on those conditions." He did not, however, specifically deny the statements attributed to him by Chapman. We find that Williams, Dodson, Dortch, Irwin, and Burns made the statements attributed to them by the employees whose testimony has been colisidered above. A considerable number of the employees having resigned from Lo- cal No. 278, the respondent on August 21, 1937, began to resume opera- tions at the Mt. Pleasant plant. On the same day, it filed with the Chancery Court of Columbia, Tennessee, an application for a tem- porary injunction to restrain Local No. 278, its members, and. others, from various and sundry acts, including interference with persons desiring to work at the respondent's plant, and to limit the number of pickets. A temporary restraining order was granted and the number of pickets limited to six. On August 27, 1937, the respondent and Local No. 278 agreed to the entry by the Chancery Court of a consent decree making perma- nent the temporary restraining order for 6 months, the said decree stating that the parties were agreed that the strike was to cease and that the existing hours and, wage schedules were satisfactory and would not be disturbed or changed for 6 months. On the same day, counsel for the Union and for the respondent signed an agreement providing as follows : Decrees having been entered this day in these two causes 1 in the Chancery Court at Columbia, it is hereby agreed and under- stood that all proceedings (except these causes) commenced or which might or could be commenced before any Boards or any Court by either of the parties on account of anything which has occurred are hereby discarded and abandoned and will not be commenced or carried on, including any contempt proceedings on account of anything.which has heretofore occurred since the 1 One decree related to proceedings with respect to the Federal Chemical Company. 247883-40-vol. 16-13 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD injunctions or either of them was issued and the charges filed, or which could or might be filed, by the respective defendants, or any of them, against respective complainants before the Na- tional Labor Relations Board, which charges already filed are to be immediately withdrawn. The strike was officially terminated on Monday, August 30, and the strikers who had not previously returned to work sought reinstate- ment on that date. B. Alleged interference, restraint, and coercion at. the Mt. Pleasant plant We have found above that the respondent, through its officials and supervisory employees, participated in the attempts to get the employees to resign from Local No. 278 and to return to work. We have also found above that on August 27, 1937, the respondent and the Union entered into an agreement which provided, among other things, that all proceedings commenced or which might or could be commenced before the Board by either party on account of anything which had already occurred would be abandoned and that the parties would not institute or carry on any proceeding on account of any- thing which had theretofore taken place. Under the Act the Board, upon charges of unfair labor prac- tices being filed and a hearing thereon had, may clearly in it s ' dis- cretion proceed to a determination of such charges irrespective of any such agreement as above set forth.2 The Board may, however, in its discretion properly give weight to such an agreement if it con- cludes that the purposes of the Act will best be effectuated thereby.3 The evidence adduced at the hearing in the instant case Jails to establish any unfair labor practices committed by the respondent at its Mt. Pleasant plant subsequent to the agreement between the Union and the respondent. It is true that the complaint alleges that subse- quent to the agreement the respondent discriminated with respect to the hire and tenure of certain of its employees at Mt. Pleasant be- cause of their union membership and activities. We find below, how- ever, that the evidence fails to establish such discrimination. Upon the entire record, we think the Board should give effect to the afore- said agreement of the parties. We shall, therefore, dismiss the com- plaint in so far as it pertains to the matters above considered. 2 See Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee, 5 N. L. R . B. 908, and Delco-Remy Corporation and International Union United Automobile Workers of America, Local No . 116, 14 N. L. R. B. 113. 8 See Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No. 1139, 10 N. L. R. B. 33. INTERNATIONAL AGRICULTURAL CORPORATION 185 C. The alleged discrimination with regard to hire and tenure of employment at the Mt. Pleasant plant The complaint, as amended at the hearing, alleges that the re- spondent, upon the resumption of operations following the termina- tion of the strike, delayed and deferred the reinstatement of George Odom, Tom Green, Robert Newcomb, Floyd Chapman, and George McAfee, and refused and continues to refuse to reinstate Sidney Johnson, Clarence - Henson, Johnnie Lemay, Joseph E. Johnson, Clarence Kennedy, Herman Davis, E. C. Serrett, William Keltner, Wilson Chapman, and Charlie Robinson, for the reason that they were members of and active in behalf of the Union, and engaged in other concerted activities for the purposes of collective bargaining and other mutual aid and protection. Upon motion of counsel for the Board, the complaint was dismissed at the hearing as regard: George Odom, Floyd Chapman, Tom Green, Robert Newcomb, and George McAfee. In his Intermediate Report, the Trial Examiner further dismissed the complaint in so far as it pertained to Herman Davis, Joseph Johnson, Charlie Robinson, E. C. Serrett, William Keltner, and Wilson Chapman. No exceptions to said rulings by the Trial Examiner were filed by the Union. The rulings are hereby affirmed. We shall accordingly pass to a consideration of the alleged discrimination against Sidney Johnson, Clarence Henson, Johnnie Lemay, and Clarence Kennedy. Sidney Johnson joined Local No. 278 on March 23, 1937, and as a member of the union bargaining committee participated in all the conferences both prior to and during the strike. At the time of the strike, he was employed in the research department. During the conferences leading to a settlement of the strike it was understood that the research department was to be discontinued and question arose as to Johnson's status. Johnson had operated a kiln prior to .his transfer to the research department and Dortch, the plant-man- ager, stated at the conference on July 16 that he would' work out a job for Johnson on the kiln. Johnson replied that the kiln job paid only 45 cents an hour whereas he had received 46 cents an hour in the research department and that he did not desire such work. He testi- fied that he did not want to accept the kiln job if lie could do better. The evidence does not, however, show that Johnson indicated to the respondent that he would accept the kiln job if better work was not available. Dortch then asked. Johnson if he wanted to run the loco- motive crane and Johnson replied in the negative. Dortch then stated that Johnson might be given work on the electric crane if the respondent decided to operate it on three 8-hour shifts. The discus- sion at the conference then turned to a consideration of other matters. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The electric crane was not put on three 8-hour shifts and when Johnson reported to Irwin, the superintendent,. for work on August 30, 1937, the latter informed him that, "It didn't work out like he (Irwin) thought it would out yonder," and that there was no work available for Johnson. Johnson made no inquiry at this time con- cerning the jobs discussed at the conference on June 16. He then saw J. A. Barr, chief engineer, from whom he secured a letter of recom- mendation. There is no evidence that Johnson complained either to Irwin or to Barr that he was being discriminated against. Thereafter Johnson worked for the Victor Chemical Company for a week and on November 6, 1937, started to work with the Charleston Mining Company. He was at work with the latter company at the time of the hearing. Johnson made no application for work with the respondent after August 30, 1937, until the first part of April 1938, at which time he made application to Pickard, general superintendent of operations at the Mt. Pleasant plant. The latter indicated that no work was then available. In the light of the above circumstances, we conclude that it has not been established that the respondent discriminated against Johnson, thereby discouraging or encouraging membership in a labor organiza- tion. We so find. Clarence Henson wul Johnnie Lem ay were both employed by the respondent for the first time in March 1937 and were assigned to work at the lime crusher under J. A. Alexander, foreman. Both joined Local No. 278 prior to the strike and during the strike were active on the picket line. Several days prior to the strike both were laid off because "the bag room was full." There is no contention that such, lay-off was discriminatory. The lime crusher was not in condition for operation on August 30 but was put into operation on September 1. Henson and Lemay applied to Alexander to work on both days but were informed that the jobs were "full up" and that work would not be available "until some of. the men who were there already quit." Prior' to the time Henson and Lemay had applied for, work on August 30, the respondent had taken on as common laborers two men who worked in the research department at the commencement of the strike and who had previously worked on the lime crusher. The two men were assigned to work on the lime crusher on September 1. In December 1937 or January 1938 the respondent employed, three -new ' men to do common labor. Irwin testified that Henson and Lemay were not around when the additional men were needed-, that he did, not know where they lived, and that he had been told that they were working elsewhere. This testimony was not controverted. INTERNATIONAL AGRICULTURAL CORPORATION 187 Although Henson and Lemay were members of Local No. 278 and were active on the picket line, the evidence does not establish that they were more active in the union affairs than many of the em- ployees given. work by the respondent on August 30. Under all the facts, we think that it has not been established that the respondent failed or refused to give employment to Henson or Lemay because of their :union activity or membership. It is to be noted in this regard that the contention is made that at the time of the consent decree of August 27 the respondent agreed to return to work all the persons employed at the time of the strike. We do not, however, think that the record establishes that the respondent did more than agree to return the men to work as jobs became available. Moreover, even if there was a breach of an agreement made at such time, we do not think the facts justify the conclusion that such breach was based on the union activity or membership of the employees involved.4 We find that the respondent has not discriminated against Henson and Lemay, thereby encouraging or discouraging membership in a labor organization. Clarence Kennedy was employed by the respondent on the rock wagon for some 7 or 8 months prior to the strike. He was a member of Local No. 278 and was active on the picket line. He applied to Irwin, the plant superintendent, for work on August 30 or 31 and was informed that there was nothing for him to do. At the time Robert Norman, who had worked for the respondent in other capaci- ties before the strike, was filling the job Kennedy had filled prior to the strike. Subsequently Kennedy applied for work on several occasions and was told that no work was then available. The evidence does not establish that the respondent took on any employees subsequent to the date on which Kennedy was first denied work until December 1937 or January 1938. At that time, the respondent, as noted above, employed three men as common laborers. Irwin testified that he did not know where Kennedy lived at the time and that the three jobs were filled with men present at the time the need for additional men arose. The evidence does not show that Kennedy was any more active in the Union and on the picket line than numerous employees who returned to work on August 30 and 31. In view of all the facts, we find that the respondent has not discriminated against Kennedy, thereby discouraging or encouraging membership in a labor organization. 4 See Emerson Electric Manufacturing Company and Local 1102, United Electrical Radio and Machine Workers of America, affiliated with the Committee for Industrial Organiza- tion, 13 N. L. R. B. 448. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Chronology of events at the Wales plants During May 1937 Anderson, the international representative of the Union, communicated with a number of the employees of the respond- ent at the Wales plant and arrangements were made for a meeting of employees on a Sunday afternoon at a colored church located close to the respondent's plants in Wales. Alf Claggett, superintendent of . the respondent's Wales rock-phosphate plant, heard that a meeting was to be held and requested the county sheriff to send some deputy sheriffs to "watch around." When a number of employees gathered at the church at the scheduled time two deputy sheriffs were seated in an automobile a short distance from the church. When Anderson arrived at the church, he questioned the deputy sheriffs relative to their presence there and was informed that Claggett had requested that they be sent to see that order was maintained. Many of the colored employees were frightened by the presence of the deputy sheriffs and no meeting was held. On June 2, 1937, Walter Kager and William Hutton, employees at the respondent's fertilizer plant at Wales, drove to Mt. Pleasant and Hutton while there attended a meeting of the Union. The following day F. H. Perrin, superintendent at the Wales fertilizer plant, questioned Kager as to whether he had been in Mt. Pleasant and as to whether anyone had gone with him. When Kager replied that he had been to Mt. Pleasant with Hutton, Perrin stated, "Let these people alone over there. We will let them attend to their business over there, and we will attend to ours." He also stated that Kager would have to be examined, that the Union would not have him, and that he "would be out." On the same day, the respondent laid off Hutton and five other employees at the Wales fertilizer plant.5 Notwithstanding the aforesaid events, the Union continued its organizational attempts at Wales and by about the middle of June a considerable number of employees had signed applications for membership in the Union. About the middle of June 1937, Anderson met with a number of the Wales employees at a store located a short distance from Wales. After Anderson made a short talk, he called upon one of the colored employees to speak. A number of witnesses testified that the white employees thereupon left the meeting. Other witnesses testified that the departure of the white employees from the meeting was due to the fact that a foreman from the respondent's acid department stuck his head in the door about the time the colored employee began to speak. We conclude that the evidence is insufficient to establish that a foreman was present at the time. 'The facts relative to the lay-off of Hutton are discussed in detail below. INTERNATIONAL AGRICULTURAL CORPORATION 189 On June 21, 1937, or a few days thereafter, Perrin was questioned by several employees relative to the respondent's attitude towards the Union. On the same day, Perrin made two talks to different groups of employees about the Union. He testified that he did so because of the questions issued by the employees and because "the general atmosphere of the plant was such everybody had those questions upon their mind." Perrin testified that he informed the employees that "the company was absolutely impartial, that the men who belonged to the union could belong to it if they wanted to, and the men who did not belong to the union didn't have to if they didn't want to, and that the men who had their jobs were going to have their jobs, and nobody was going to run them off, union activity or non-union activity." J. A. Wallace, an employee, testified that Perrin also stated that the employees who desired to resign from the Union could do so by going to the office of David Wade, a local attorney. Perrin did not in his testimony either deny or affirm that he made the statement attributed to him by Wallace. We conclude that Perrin made such statement. Between June 26 and July 1, 18 employees of the Wales plants went to Wade's office and signed identical letters of resignation from the Union which Wade drafted. It appears that thereafter organizational attempts at the Wales plants were abandoned. E. Interference, restraint, and coercion at the Wales plants We have noted above that due to the presence of deputy sheriffs a meeting of employees at the colored church in Wales was not held as scheduled and that the deputy sheriffs were present because of a request made by Claggett, the respondent's plant superintendent. The latter testified that there was a lot of commotion around Wales, but conceded that there were no breaches of the peace or disorders of any kind. We are convinced that the respondent perceived that the presence of the deputy sheriffs would interfere with the union activities of its employees and that such was the basis for the request relative to the deputy sheriffs. We think it clear that Perrin questioned Kager in order to obtain facts relative to the union activities of the respondent's employees and that the statement which Perrin made to Kager was designed to prevent him and other employees from engaging in union activities. We are also convinced that the speeches which Perrin made to groups of employees were designed to interfere with a free exercise by employees of the rights guaranteed in Section 7 of the Act and that they did in fact so interfere. It is to be noted in the latter connection that the respondent contends that the resignations from 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union resulted from the fact that a colored man was called upon to speak at a meeting of employees. It is significant, however, that practically all, if not all, the resignations from the Union took place within a few days after the remarks made by Perrin and after his suggestion that employees who desired to resign from the Union could do so by going to Wade's office. We find that, by the acts set forth above, the respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. F. The alleged discrimination with regard to the hire and tenure of employment of William Hutton William Hutton began to work at the respondent's Wales fer- tilizer plant on January 3, 1937, in the acid department. On June 2, 1937, he went with Walter Kager, an-employee, to Mt. Pleasant where he attended a meeting of the Union. At the meeting, he joined the Union and obtained some 35 membership application cards. When he went to work the following morning he placed the appli- cation cards in his 'locker at the . plant together with, some--work clothes. As we have noted above, Perrin, the plant superintendent, on the same morning questioned Kager relative to his trip to Mt. Pleasant and learned that Hutton had gone with Kager to Mt. Pleasant. During the afternoon of June 3, W. O. Allen, the assistant plant superintendent, informed Hutton that he would have to lay him off for a few days. On the same afternoon, the respondent laid off five other employees. There is no evidence that the other five em- ployees were members of the Union or participated in any union activities. Perrin, Allen, and Ball, the latter being the foreman under whom Hutton worked, all testified that the lay-off had been decided upon at a conference a week previously, that the lay-offs were due to the fact that the rush season had ended and work had become slack, and that the selection of the, men to be laid off was based on length of service and efficiency. Of the men laid off on June 3, two had been employed by the respondent for a longer period than Hut- ton and three were employed subsequent to the date on which Hutton was employed. After Hutton's lay-off, he went to his locker and discovered that the membership application cards which he had placed ^ in the locker that morning were missing. Hutton testified that on the following Saturday, June 5, he went to the plant to get his pay and at that time he saw Perrin who asked why he was at 'the plant ; that Perrin also asked, "Didn't you get laid off Thursday?"; that when lie replied INTERNATIONAL AGRICULTURAL CORPORATION 191 in the affirmative, Perrin stated, "Well, I am firing you now." He testified that Perrin also stated, "Understand you are fired. If I catch you out here-I don't want you trespassing any more. If I find you out here I will have to put you in jail." When questioned at the hearing as to whether Perrin gave any reason for the discharge, Hutton testified, "Well, I just couldn't say positive, but I think he replied something about me coming to Mt. Pleasant with those cards." He also testified that he did not obtain his pay at the time, but obtained it later the same afternoon from Perrin at a bank in Pulaski, Tennessee. The respondent normally paid on Saturday afternoon at the bank those employees who did not work on the Saturday night shift. Perrin testified that the only conversation which he had with Hut- ton on the Saturday afternoon in question was at the time Hutton received his pay at Pulaski. He testified that at that time Hutton asserted that Perrin had laid him off because he joined the Union and that Hutton was informed that he was laid off because of a lack of work>and that he could return to work as soon as work was available. Perrin also testified that on the following Monday it was reported to him that Hutton was at the plant soliciting members for the Union during working hours and that he summoned Hutton to his office and informed him that such solicitation was not permitted and that he wanted Hutton to remain away from the plant until the respondent called for him. Hutton indicated in his testimony that he had issued application cards to employees in the plant, but was indefinite in his testimony as to when he did so. Several weeks after his lay-off Hutton met Perrin in Pulaski and asked about returning to work. Perrin informed Hutton that nothing was available at the time but for him to come to the plant in about 2 weeks. On August 6, 1937, Hutton applied to Perrin for work and was sent to Ball who gave him a job. Hutton testified that at the time he was reemployed Perrin stated, "Now, Hutton, if any of these boys try to round you up or talk to you about the Union, or anything like that, just pass them up and go on and stay on your job." This testimony was not controverted and we find that Perrin made the statement attributed to him. All the five men laid off at the time of Hutton's lay-off were rein- stated within several weeks of the date on which Hutton was rein- stated. At least two of the five men were reinstated subsequent to Hutton's reinstatement. The fact that Hutton was laid off the day after he attended the union meeting at Mt. Pleasant and Perrin's statement to Hutton at the time the latter was reinstated cast doubt upon the respondent's claim that Hutton's union membership and activity had nothing to 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do with his lay-off on June 3. However, we conclude on the basis of the entire evidence that it has not been established that Hutton was discriminated against by the respondent. We have noted that Perrin, Allen, and Ball testified that the lay -offs of Hutton and five other employees were decided upon at a conference which took place a week before Hutton attended the meeting at Mt. Pleasant. There is no evidence that any of the other employees laid off on June 3 were members of the Union or that they participated in its activities. Two of such employees had greater seniority than Hutton. Although Hutton testified that Perrin discharged him on June 5, we do not think the evidence establishes that such a discharge took place. It is to be noted, for example, that Hutton was returned to work prior to the date on which at least two of the persons laid off together with Hutton were reinstated . We think it significant also that Hutton made no reference to any alleged discharge at the time he asked about returning to work. Indeed, the facts pertaining to such request indicate that both Hutton and Perrin considered Hutton as a person who had been laid off rather than discharged. We find that the respondent has not discriminated with regard to the hire and tenure of employment of William Hutton, thereby en- couraging or discouraging membership in a labor organiz'ation or interfering with, restraining, and coercing its employees in the ex- ercise of the, rights guaranteed in Section 7 of the Act. We find, however, that by the remark which Perrin made to Hutton when the latter returned to work, the respondent interfered with, re- strained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III (E ) above and the activity of the respondent referred to in the last sentence of Section III (F) 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 coin- coerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the respondent has engaged in unfair labor practices at its Wales, Tennessee , plants, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact and the entire record in the cases, the Board makes the following: INTERNATIONAL AGRICULTURAL CORPORATION 193 CONCLUSIONS OF LAW 1. International Union of Mine, Mill and Smelter Workers is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees at its Wales, Tennessee, plants, in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not discriminated with regard to the hire and tenure of employment of William Hutton, within the meaning of Section 8 (3) of the Act. 5. The respondent, since the settlement agreement of August 27, 1937, has not interfered with, restrained, or coerced its employees at its Mt. Pleasant, Tennessee, plant, in the exercise of rights guar- anteed by Section 7 of the Act, within the meaning of Section 8 (1) of the Act. 6. The respondent has not discriminated with regard to the hire and tenure of employment at its Mt. Pleasant, Tennessee, plant, within the meaning of section 8 (3) of the National Labor Relations Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, International Agricultural Corporation, Wales, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees at its Wales, Tennessee, plants in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of, their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Immediately post notices in conspicuous places in and around its plants at Wales, Tennessee, and maintain such notices for a period of at least sixty (60) consecutive days, stating that it will cease and desist as aforesaid; 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has discriminated against William Hutton within the meaning of Section 8 (3) of the National Labor Relations Act, be, and it hereby is, dismissed. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has engaged in and is engaging in unfair labor practices at its plant in Mt. Pleasant, Tennessee, be, and it hereby, is, dismissed. MR. WILLIAM M. LEISERsom took no part in the consideration of the above Decision and Order. a