Victor Chemical Works

National Labor Relations Board - Board Decisions

Mar 30, 1951

93 N.L.R.B. 1012 (N.L.R.B. 1951)

1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its exceptions filed February 6, 1951, the Employer asserts that
opening and counting the ballots challenged at the election, as recom-
mended by the Regional Director, would expose the four employees
concerned to the hazard of coercion and would constitute a violation
of the secrecy of the ballot guaranteed by the Act. The Board 1
finds no merit in this contention.2 As there are no exceptions to the
Regional Director's finding that these employees were eligible to vote,
we adopt this finding and shall direct that their ballots be opened
and counted. As the result of this count may determine the results
of the election, we shall make no ruling, at this time, on the Em-
ployer's exception to the Regional Director's recommendation that its
objection as to the vote of Maurice Bergeron be overruled.'
Direction
As part of the investigation to ascertain representatives, for the
purposes of collective bargaining with Waterbury Companies, Incor-
porated, Waterbury, Connecticut, the Regional Director for the First
Region shall, pursuant to the Rules and Regulations of the National
Labor Relations Board, within ten (10) days from the date of this
Direction open and count the challenged ballots of Amenda Cham-
paigne, Mary Malacusky, Joseph M. Assif, and Giovanni Brunetti,
and shall thereafter prepare and cause to be served upon the parties
a supplemental tally of ballots, including therein the count of these
challenged ballots.
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Chairman Herzog and
Members Houston and Reynolds].
'Estee Bedding Company , 73 NLRB 825.
'Pending the issuance of the supplemental tally we shall make no disposition of the
motion of Local 1251 UAW, CIO that it be substituted for Local 651 PMC-IUMSWA-CIO
as Petitioner.
VICTOR CHEMICAL WORKS and INTERNATIONAL CHEMICAL WORKERS
UNION, A. F. L. Cases Nos . 10-CA--702, 10-CA-880, and 10-CA-
889. March 30, 1951
Decision and Order
On October 27, 1950, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending 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
93 NLRB No. 188.
VICTOR CHEMICAL WORKS 1013
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Houston and
Reynolds].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby afrlned.1 The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire-record in the
case,2 and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the additions and modifications set
forth below. '
1. We agree with the Trial Examiner that the Respondent has vio-
lated Section 8 (a) (1) of the Act. In reaching this conclusion we
rely principally upon the following incidents :
(a) Calling employees individually or in small groups to confer-
ences with one or more supervisors for the purpose of interrogating
them concerning their union sympathies.
(b) Master Mechanic Schneider's request of employee Davis be-
fore the election that he put in a good word for the Company to keep
the Union out, and his implied threat to Davis to lay him off if he did
not change his attitude.
(c) Schneider's questioning of employee Kelly in the last part of
October 1949 about his membership in the Union, and Schneider's
request that Kelly advise him if Kelly was asked to join the Union.
(d) Plant Foreman Maloney's questioning of employee Tillman
before the election concerning his union sympathies, and Maloney's
request that Tillman advise him what was taking place at the Union's
meetings.
(e) Holtgrew's soliciting from Tillman the names of employees
who attended union meetings.
(f) The promise made to Early before the election by either Hend-
rickson or Schneider, that he would "be taken care of" if he abandoned
the Union.
1 We find no merit in the General Counsel 's contention that the Trial Examiner erred
in refusing to amend the complaint to add allegations concerning the discriminatory
discharge of Clark and Macomber The General Counsel's motion to amend the complaint
was made after his case was completed . The Trial Examiner took the motion under
advisement , and concluded that even if all credibility issues were resolved in favor of
the General Counsel , he could not find that the Respondent had discriminated against Clark
and Macomber For that reason he denied the motion to amend as to these two individuals.
Although the procedure adopted by the Tiial Examiner is unusual in Board proceedings,
we cannot perceive on the facts of this case that any of the parties were prejudiced
thereby Indeed , the Trial Examiner 's ruling produced the salutory effect of shortening
the hearing by relieving the Respondent of the necessity of presenting a needless defense
as to Clark and Macomber.
2 As the record, exceptions , and briefs adequately present the issues and positions of
the parties , the Respondent 's request for oral argument is denied.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) The questioning by supervisors of Fowler, Pruett, Roberts,
Williams, Bunell, Fox, Kelly, McCollom, Early, Martinez, Watford,
Hayes, and others about their union sympathies, their vote in the elec-
tion, or their feelings concerning the advantages of union member-
ship.
The Respondent argues that most of the foregoing incidents may
not be used by the Board as a basis for an unfair labor practice find-
ing, because they either antedated a settlement agreement in Case No.
10-CA-702, approved July 29, 1949, or occurred more than 6 months
before the filing and service of the earliest effective charge within the
meaning of Section 10 (b) of the Act. We reject both arguments.
Because the Respondent, as found below, committed unfair labor
practices since the settlement agreement was approved, the Board is
free to consider and rule upon events which predated the agreement.'
Charges in Case No. 10-CA-702 were served upon the Respondent in
May 1949, and contained allegations that the Respondent had violated
Section 8 (a) (1) of the Act. As none of the foregoing unfair labor
practices occurred more than 6 months before the filing and service
of these charges, the limiting provisions of Section 10 (b) are not
applicable.'
2. We agree with the Trial Examiner's finding that all the com-
plaints were laid off for justifiable economic reasons on June 9, 1949.
We also agree with his finding that the Respondent discriminated
against McCollom and Sanford in violation of Section 8 (a) (1) and
(3) of -the Act by failing to reemploy them when jobs became avail-
able. McCollom and Sanford had been led to believe when they were
laid off that the layoff was only temporary, and that they then would
be rehired. McCollom testified that on about three occasions after
his layoff he was told by Plant Superintendent Crider that the layoff
would not last long.
Both men were active union members and the Respondent knew it.
Thus, the record reveals that a day or two after Sanford became the
first employee to pay his union dues, Operations Foreman Hendrick-
son remarked to him that he was the "No. 1 man." Similarly, Mc-
Collom was called into Schneider's office shortly after he was elected
secretary-treasurer of the Union and asked why he wanted the Union;
and he testified as a union witness at the representation hearing con-
ducted on June 16, 1949. Both men applied by letter for reemploy-
ment in September 1949, when the Respondent was hiring new men.
But the Respondent rejected each applicant, on the ground that he
' See Rice-Slix of Arkansas, Inc., 99 NLRB 1333.
' See Cathey Lumber Company, 86 NLRB 157 . The testimony concerning events which
occurred at the time of the Board election in 1948 has been considered for the purposes
of background only. See Axelson Manufacturing Company, 88 NLRB 761 ; Crowley's
Milk Company , Inc., 88 NLRB 1049.
VICTOR CHEMICAL WORKS 1015
had ceased to be an employee on June 9, 1949. Neither had been re-
hired up to the time of the hearing herein. Although the record
contains some testimony that Sanford and McCollom were not model
employees in every respect, we are convinced, upon the entire record,
that but for their active support of the Union, they would have been
rehired when the Respondent began to increase production and hire
new employees.
As neither the General Counsel nor the charging party has taken
exception to the Trial Examiner's recommendation that back pay run
from October 1, 1949, we shall adopt that recommendation.
3. We disagree with the Trial Examiner's finding that Truf ant was
discriminatorily denied reinstatement in violation of the Act.
Truf ant, unlike McCollom and Sanford, never requested reemploy-
ment.5 Moreover, it does not appear from the record that he was led
to believe that he would be called back automatically when produc-
tion increased. Indeed his testimony creates the impression that he
understood that some further action on his part would be necessary at
that time.' In these circumstances, we reject the Trial Examiner's
-finding that the Respondent's failure to recall him was discrimina-
tory. Accordingly, we shall dismiss the complaint insofar as it al-
leges that the Respondent discriminated against Trufant in violation
-of the Act.
4. We disagree with the Trial Examiner's finding that the Re-
spondent discriminated against Fox in violation of the Act. Fox
may have been led to believe at the time of his layoff that he would
be rehired when the plant increased production, and he applied for
reemployment on September 28, 1949. Nevertheless, we are not satis-
fied, upon the entire record, that the Respondent's failure to re-
employ him was discriminatory.
Fox, who was listed by the Respondent as a maintenance mechanic,
was not physically able to perform all of the duties of that job, and
accordingly was assigned to inspecting, oiling, and greasing equip-
inent. Fox conceded at the hearing that he had been reprimanded
for loafing on two occasions by Master Mechanic Schneider and that
he sometimes gave the impression that he was loafing. The fact that
Fox's impression was correct is attested to by the testimony of Oper-
ations Foremen Hutchinson and Hendrickson; Plant Foremen Odom,
Moloney, and O'Kelly; and Master Mechanic Schneider. According
to each of these supervisors, they had observed Fox loafing in the
5 Although the service of the amended charge in Case No. 10-CA-889 upon the
Respondent during the hearing might be considered as a request for reemployment, the
record does not establish that the Respondent had any job available for Trufant at
that time -
U Thus, Trufant testified that when he was laid off, he was told that as soon as produc-
tion started up again, he would.be "eligible for rehiring "
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant, or waiting for smoke and gas to clear after the tapping of a
furnace.
The Trial Examiner apparently did not fully understand the nature
of Fox's duties. In the Intermediate Report, the Trial Examiner
states that there was no evidence that Fox's "method of tapping the
furnace was disapproved or that Fox was requested to adopt any
other." The record reveals that the furnace was tapped, not by Fox,
but by the operating crew, and that Fox's only job there was to inspect,
oil, and grease certain mechanical equipment after the tapping opera-
tions. His duties did not require his presence there at any time dur-
ing the tapping operation. Nevertheless, it appears that Fox made
it a practice to arrive at the start or during the tapping and to stand
and talk with the operating crew for a- considerable period of time,
while the gases and smoke from the furnace were clearing and before-
his job could be performed.
In view of the considerable testimony in the record that Respond-
ent's supervisors considered Fox to be a loafer, and Fox's admission
that he was twice reprimanded for loafing by Schneider, we cannot
find, as the Trial Examiner has done, that the Respondent's failure
to reemploy him was discriminatory. Accordingly, we shall dismiss
the complaint insofar as it alleges that the Respondent discriminated
against Fox within the meaning of the Act.7
5. We cannot agree with the Trial Examiner's finding that Early's.
quitting the plant on August 30, 1949, amounted to a discriminatory
constructive discharge. In view of the Respondent's flagrant anti-
union campaign, Early's known position as president of the Union_
and its most active advocate in the plant, and the Respondent's repeat-
ed questioning of him about the Union, every action of the Respondent
which might be construed as part of a plan to get rid of Early is nat-
urally suspect. However, the Board, after examining the record
carefully, concludes that it cannot be said that his discriminatory con-
structive discharge has been proved.
The Trial Examiner points out in his Intermediate Report that
shortly before the election of August 22, 1949, Early was ordered to
do dangerous nonelectrical work on the float at the top of the water
tower, implying that this assignment was part of a plan to get rid
of Early. On the other hand, Lisenby, the only other journeyman
electrician in the electrical shop, testified, without contradiction, that
he had also been instructed to and did repair the same float many
7 Member Houston is of the opinion that the Trial. Examiner's finding as to Fox, and:
his similar finding as to Early hereinafter discussed in the majority opinion, should be-
sustained. In his opinion the Trial Examiner's conclusions are not unreasonable, nor
do his colleagues find otherwise. For this reason, and because the Trial Examiner upon
the entire record and from his observation of the witnesses inferred and found that the-
Respondent was actuated by a discriminatory motive he would affirm the Trial Examiner's
findings as to these two men.
VICTOR CHEMICAL WORKS 1017
times. Again the Trial Examiner implies in the Intermediate Report
that the Respondent was trying to make Early's job onerous shortly
after the election, by requiring him to do manual labor for 30 minutes
loading pipe. However, it appears from the record that j ourneynien
electricians were often required to do manual labor for short periods
on small jobs such as this.
Finally, we are not satisfied that there was an antiunion motivation
for the order which the Trial Examiner finds brought about Early's
decision to quit. On August 26 and 27, 1949, a hurricane struck Tar-
pon Springs , the situs of the Respondent 's plant, and caused extensive
plant damage. Brooks, the chief electrician, and Lisenby worked
most of Sunday, August 28, repairing the damage. Brooks attempt-
ed to get Early to help with this work but was unable to reach him.
On Monday, August 29, Early went to work as usual and joined
Brooks and Lisenby in repairing the damage. The next morning
Brooks asked Early to inspect the damage at the slag plant. At about
11 a. in. Brooks went there to see what progress had been made. Ac-
cording to Early's testimony four or five starter motors needed re-
pairs and the crusher motor had to be dried out. At the time of
Brook's visit Early had repaired only one starter motor. According
to Early, Brooks ordered him to finish all of the rest of the work there
and return to the shop by noon. Early did go to the shop at noon,
and told Brooks he had been unable to finish the work. After lunch he
returned to the slag plant, where he continued working for from 30
minutes to an hour. Only then, according to the Trial Examiner, did
he decide that he could not finish the repairs in time. He then notified
the personnel manager that he had been forced to quit.
Crediting, as the Trial Examiner has done, all of Early's testimony
about this incident and discrediting that of Brooks, who stated at
the hearing that he had told Early to finish only what he could by
noon and then come back to the shop where there was more urgent
work, we nevertheless cannot find that Early 's decision to quit was
brought about by an unlawfully motivated order from Brooks that
was virtually impossible of performance. Such a finding would be
inconsistent with Early's own testimony as he conceded that he talked
to Brooks at noon and thereafter returned to the slag plant and con-
tinued his work there. In the circumstances it appears that Brooks
during his noon conversation with Early must have abandoned the
deadline previously set in their conversation at 11 a. in. Although
Early, as stated above, testified that he told Brooks that the work at
the slag plant could not be finished by noon, the record is barren of
any testimony that Early, before he quit, ever. complained to Brooks
-or any other supervisor that he was being assigned jobs which were
too difficult to perform.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, and upon the entire record, we conclude
that Early's action in quitting his job on August 30, 1949, did not
amount to a discriminatory constructive discharge. Accordingly, we-
shall dismiss the complaint insofar as it alleges that the Respondent
discriminated against Early in violation of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Victor Chemical
Works, Tarpon Springs, Florida, and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Chemical Work-
ers Union, A. F. L., or any other labor organization of its employees,
by refusing to recall them, or by discriminating in any other manner-
in regard to their hire or ten-Lire of employment or any term or con-
dition of employment.
(b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self -organization, to,
form labor organizations, to join or assist International Chemical
Workers Union, A. F. L., or any other labor organization, to bargain
collectively through representatives of their own choosing, to engage-
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any and all such activi-
ties except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of'
employment, as authorized in Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to employees William C. McCollom and Vaughn B. San-
ford full and immediate reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights
and privileges.
(b) Make whole the employees named in the preceding paragraph
for any loss of pay they may have suffered by reason of the Respond-
ent's discrimination against them, as set forth in the Intermediate
Report.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, personnel records and reports, and all other records necessary
to determine the amount of back pay due.
VICTOR CHEMICAL WORKS 1019
(d) Post at its plant in Tarpon Springs, Florida, copies of the
notice attached hereto as Appendix A.8 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent's representative, be posted by
Respondent immediately upon receipt thereof and maintained by it for
sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Tenth Region in writing,
within ten (10) -days from the date of this Decision and Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent unlawfully discharged
or refused reemployment to Joseph H. Fox, Charles R. Truf ant, Walter
H. Early, William C. Murphy, and Bronzell Watford.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursant 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 INTERNATIONAL
CHEMICAL WORKERS UNION, A. F. L., or any other labor organiLa-
tion, 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 re-
frain from any or all of such activity, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, 'as
authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination :
William C. McCollom
Vaughn B. Sanford
8 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order ," the words "A Decree
of the United States Court of Appeals Enforcing."
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of such labor organization.
VICTOR CHEMICAL WORKS,
Employer.
By -----------------------------
(Representative ) ( Title)
Dated--------------------
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 and Recommended Order
William J. Rains, Esq., for the General Counsel.
Beverly B. Vedder, Esq., of Chicago, Ill., for the Respondent.
Mr. David L. Sherer and Mr. Walter L. Mitchell, of Atlanta, Ga., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge filed on June 7, 1950, in Case No. 10-CA-702, an
amended charge filed on June 7, 1950, in Case No. 10-CA-820, and a charge filed
November 9, 1949, in Case No. 10-CA-889, by International Chemical Workers
Union, A.F.L., herein called the Union, the General Counsel for the National
Labor Relations Board, herein called the Board, by the Regional Director for the
Tenth Region (Atlanta, Georgia), issued a complaint dated June 13, 1950, against
Victor Chemical Works, maintaining its principal office at Chicago, Illinois, and
doing business in various states including the State of Florida, herein called the
Respondent, alleging that the Respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and
Section 2 (6) and (7) of the Labor Management Relations Act, 61 Stat. 136,
herein called the Act. Copies of the charges and of the complaint, accompanied
by an order consolidating cases and notice of hearing thereon were duly served
upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance
that: (a) The Respondent on or about June 9, 1949, discharged, Joseph H. Fox,
William C. McCollom, William C. Murphy, Vaughn B. Sanford, and Bronzell
Watford, five employees at its Tarpon Springs, Florida, plant and thereafter
failed and refused to reinstate them because of their activities on behalf of the
Union; (b) the Respondent on or about May 6, 1949, assigned one employee at
its Tarpon Springs, Florida, plant to more arduous and onerous tasks than those
to which he normally would have been assigned and, on or about August 30, 1949,
by means of such conduct constructively discharged and thereafter failed and
refused to reinstate him because of his activities on behalf of the Union; (c)
the Respondent by its officers, agents, and employees, particularly through cer-
tain named individuals committed, authorized, instigated, and acquiesced in in-
terrogating its employees concerning their union membership and activities,
keeping under surveillance the union meetings and activities of its employees,
threatening and warning its employees to refrain from assisting, becoming mem-
bers of, or remaining members of the Union, and promising its employees better
jobs, higher wages, and other benefits on condition that they refrain from assist-
VICTOR CHEMICAL WORKS 1021
ing, becoming members of, or remaining members of the Union ; and (d) the
above alleged acts and conduct are violative of the Act, more particularly Sec-
tion 8 ( a) (1) and ( 3) thereof . On June 20 , 1950, the Respondent filed an answer
in which it denied committing any of the unfair labor practices alleged in the
complaint and by way of further defense asserted that the unfair labor practices
charged as having occurred on May 6 , 1949, and thereafter occurred more than
6 months prior to the filing of the charges ; that the acts alleged by the com-
plaint to have occurred more than 6 months prior to the filing of the charges must
be disregarded as provided by Section 10 (1) of the Act; that the employee
alleged in the complaint to have been constructively discharged on or about
August 30 , 1949, voluntarily left his employment and that the alleged interroga-
tion of employees , the keeping under surveillance of union meetings and activities
of employees , the threatening and warning of employees to refrain from assisting,
becoming members of , or remaining members of the Union , and the promising of
better jobs, higher wages, and other benefits to employees on condition that they
refrain from assisting , becoming members of, or remaining members of the Union,
have been eliminated by a settlement agreement in Case No . 10-CA-702 on July
27, 1949, made between the Respondent and the Union and approved by the
Regional Director of the Board.
Pursuant to notice , a hearing was held at 't'arpon Springs , Florida, on July
5, 6, 7, 10, 12, 13 , 14 and August 15, 1950, before Stephen S . Bean, the under-
signed Trial Examiner , duly designated by the Chief Trial Examiner. The
General Counsel and the Respondent were represented by counsel ; the Union by
one of its national vice presidents and one of its organizers . The representatives
of the parties are herein referred to in the names of their respective principals.
All parties participated in the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses , to introduce evidence bearing on
the issues , to argue orally on the record , and to file briefs, proposed findings
of fact , and conclusions of law. The General Counsel argued orally on the
record ; the Respondent stated it preferred to present its argument by brief
after studying the transcript of the evidence . Briefs have been received from
the General Counsel and the Respondent and have been carefully considered.
The General Counsel ' s motion, made at the commencement of the hearing, to
amend pam agraph IX of the complaint to include the name of an additional
person among those whom it is alleged more particularly engaged or acquiesced
in interrogation , surveillance , threats , and promising of benefits was allowed.
The General Counsel ' s motion made at the close of the hearing, to conform the
pleadings to the proof as to names , dates, and other minor variances was allowed.
It having been represented by the Respondent that T. M. Crider, one of the
persons alleged to have interrogated , watched, threatened , and promised benefits
to employees , was confined to a hospital in Baker, Oregon , the parties were
allowed time until August 17, 1950, within which to take under a stipulation, and
have filed with the Trial Examiner , a deposition from said Crider . This deposi-
tion was received on August 16, 1950, and has been considered with the other
evidence.'
' The following testimony is stricken from this deposition on the motions of the General
Counsel
a Crider 's answer to the question , "Did you say to Early at that time 'Earl y you are
not fired yet. A little incident happened this afternoon. Do you admit you were
insubordinate' "
b That portion of Crider's answer to the question "What was the practice of that
plant while you were there in the matter of discharges? How were they handled?," as
follows, " I am happy to say that in very few incidents was it ever necessary to go to
the extreme of discharging."
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel's motion to strike from the record, testimony offered by
the Respondent referring to an alleged conversation between officials of the
Respondent and a field examiner of the Board on which decision was reserved,
is now allowed!
After all parties had rested and upon the Trial Examiner requesting them if
they desired to argue the case, the General Counsel, on July 14, 1950, moved for
introduction into evidence of and for leave to substitute for the charge in Case
No. 10-CA-889, filed November 9, 1949, an amended charge including in addition
to the five names set forth in the original charge the names of three more em-
ployees, John L Clark, Charles R. Trufant, and Russell E. Macomber, and
omitting the words "within the past six months." Copies of the amended charge
were filed with the reporter and personally served on the Respondent and on the
charging party. The General Counsel then moved that the complaint be amended
by including in paragraphs VI and VIII thereof, in addition to the five names
therein set forth, the names of said three additional employees.
The Respondent generally objected to the admission of the amended charge
into the evidence and to the allowance of the motion and particularly objected
to such admission and allowance at the conclusion of the hearing which had
gone on over a period of 10 days and after both sides had rested. In order to
have an opportunity to study the evidence relating to the three additional em-
ployees whom it was sought to include at the conclusion of the taking of evi-
dence, as individuals who had been discriminatorily discharged and improperly
denied reinstatement, and to provide ample time for the Respondent to defend
in the event the motion to amend the complaint were allowed, I took the matter
of admitting the amended charge and allowing the amendment to the complaint
under advisement. On July 25, 1950, the official report of the proceedings having
been received and pertinent parts of the record having been reviewed and
after receipt of a letter from the Respondent dated July 20 in which it re-
iterated and amplified objections made at the hearing on July 14, I, for reasons
hereinafter set forth, issued an order permitting introduction into the evidence
of the amended charge, allowing the amendment to the complaint to the extent
of including one of the three employees therein named but excluding the other
two,' allowing time for the filing of an amended answer and designating August
15, 1950, as the date for a further hearing for the sole purpose of presenting
testimony respecting the allegations concerning the one employee, to wit, Charles
R. Trufant, whose name was among the three additionally included in the com-
plaint as an alleged discriminatorily discharged employee, by virtue of the
allowance in part of the motion to amend the complaint.
On July 25, 1950, while the hearing was in recess, the General Counsel filed
with the Board a request for special permission to appeal directly from the under-
signed's ruling denying his motion in part. By telegraphic order on August 2,
the Board denied the request, as well as a request that the Trial Examiner be
directed to state the grounds for ruling, stating that it preferred to consider
the issue upon the record as a whole if raised pursuant to the provisions of
Section 203.46 of the Rules and Regulations. The Board made these rulings
without prejudice to the right of the General Counsel to renew the motions on
August 15
On the latter date the General Counsel renewed his motion to amend the com-
plaint by including therein the names of the two additional employees sought
2 Cf N. L R. B. v. Baltimore Transit Company, 140 F. 2d 51 (C A 4), cert.'den.
321 U S 495.
1 John L. Clark and Russell E. Macomber.
VICTOR CHEMICAL WORKS 1023
to have been added by means of the original motion made on July 14, 1950 The
General Counsel having stated that he had nothing additional to offer in sup-
port of the motion either by way of proof or representation, I denied the re-
newed motion and stated for the record an outline of the grounds for my ruling.
During the course of the hearing the Respondent excepted to the admission
of all testimony :
(1) As to acts, conversations, and transactions which occurred more than
6 months prior to the filing of the amended charges ;
(2) As to acts, conversations, and transactions which occurred more than
6 months prior to the filing of the amended charges and as to which the
Respondent was not specifically and definitely advised by said amended charges ;
(3) As to acts, conversations, and transactions of which the Respondent
was not specifically and definitely advised by charges filed within 6 months
after such acts, conversations, or transactions occurred.
At the conclusion of the hearing on August 15 the Respondent moved that
all of the above testimony be stricken from the record.
I admitted the testimony and denied the motion on the grounds that although
Section 10 (b) effectively 'preel iides findings of violations of the Act based upon
events occurring more than 6 months prior. to the filing of a charge, it does
not prohibit the use of evidence relating to those events for background purposes.`
Upon the entire record in the case including the Report of the proceedings
and decision in Case No 10-RC-582, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an Illinois corporation operating plants and factories
in the States of Illinois, Tennessee , Pennsylvania, and Florida where it is
engaged in the manufacture, sale, and distribution of chemicals and related
products. Its Tarpon Springs, Florida, place of business is the only location of
the Respondent involved in these proceedings. At Tarpon Springs it com-
menced in 1947 to manufacture elemental phosphorus by the electro-thermal
process, converting by the use of electric current phosphatic rock which is
charged into a furnace, in a new plant in which it invested over $1,000,000.
In the course and conduct of its business operations at Tarpon Springs, during
the calendar year 1949, the Respondent purchased electric power and raw
materials consisting chiefly of phosphate rock, coke, and line, valued in excess
of $1,000,000 approximately 10 percent of which in value originated outside
the State of Florida and was shipped in interstate commerce to the Tarpon
Springs plant . During the same period, the Respondent sold finished products
consisting principally of phosphorous valued in excess of $1,000,000 approxi-
mately 90 percent of which in value was sold and shipped to customers outside
the State of Florida.
The Respondent admits and it is found that the Respondent is engaged in
commerce and that its operations effect commerce within the meaning of the Act.
II. TIIE ORGANIZATION INVOLVED
International Chemical Workers Union, A. F. L, is a labor organization which
admits to membership employees of the Respondent.
* Axeison Manufacturing Company, 88 NLRB 761. See also footnote 9.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III TUE U N FAIR LABOR PRACTICES
A. Background -
In 1948 the Union sought to obtain certification as the bargaining representa-
tive of the Respondent's employees An election was held on April 20 of that
year. On September 2, 1948, following that election in which the Union failed
to obtain a majority of the valid votes cast, the Board dismissed the Union's
petition. On July 27, 1949, following the filing of an amended charge in Case
No. 10-CA-702 by the Union on May 10, 1949, based upon alleged discriminations
in regard to the hire and tenure of employment of 10 employees not named in the
complaint, who were laid off on April 5, 1949, the Respondent and the Union on
July 27, 1949, executed a settlement agreement which made no provision for the
reinstatement of the 10 employees. This agreement was approved by the Regional
Director for the Tenth Region of the Board on July 29, 1949. Although the
Respondent pursuant to the agreement posted a notice for a period of 60 days, the
requested withdrawal of the charge in Case No. 10-CA-702 did not become effec-
tive because the Regional Director, in view of the filing of a charge in Case
No 10-CA-820 was not satisfied that the provisions of the agreement had been
carried out.
On June 16, 1949, a representation hearing (Case No. 10-RC-582) was held
and the Board on July 29, 1949, denied the Respondent's motion to dismiss the
Union's petition to obtain certification as the bargaining representative of the
Respondent's employees and directed that an election among employees in an
appropriate unit be held within 30 days.
This election was held under the auspices of the Board on August 22 and 23,
1949. The Tally of Ballots disclosed that there were approximately 71 eligible
voters, and that 82 ballots were cast of which 38 were for the Union and 32
were against the Union, and 12 were challenged. Among the challenged ballots
were those of Joseph H. Fox, W. C. McCollom, William C. Murphy, Vaughn B.
Sanford, Charles R. Trufant, and Bronzell Watford, the 6 employees named in
paragraphs VI and VIII of the complaint as amended.
On August 29, 1949, the Respondent objected to conduct affecting the result
of the election and following an investigation during the course of which it ap-
peared that a petition had been signed by 44 employees of the Respondent re-
questing that the election be declared null and void, the Board on October 24.
1949, found that challenges to the ballots contained merit, overruled the Re-
spondent's objections based on its contention that employees were coerced and
threatened by the Union to such an extent that the result of the election was
affected, found that the Union had obtained a majority of the valid ballots cast
and certified it as the collective bargaining representative of all employees
of the Respondent in an appropriate unit.
I now revert to the particular events which occurred during a union member-
ship campaign which started openly the first of March or the last of February
1949 and was prosecuted vigorously until the election held- on August 22 and 23,
1949. In the first 5 months of 1949 the Respondent's inventory had increased
about 75 percent and its sales had decreased about 3 percent from the average
of the last quarter of 1948 As previously pointed out, a number of employees
were laid off on April 5 and charges respecting these individuals were filed.
About June 1, 1949, it became apparent to the Respondent that business condi-
tions indicated another reduction in force and a list of 19' out of its approxi-
mately 98 employees was selected for a layoff which took place on June 9, 1949.
a The Respondent agreed that a twentieth employee quit and should not be included
in the list.
VICTOR CHEMICAL WORKS 1025
Fifteen of these individuals were union members or adherents, 2 were neither-
members nor adherents, 1 wore a union button conspicuously in the plant and,
1, a watchman, was not included in the unit found to have been appropriate.
Of the 19, the 2 nonunion members were rehired or reinstated on June 22, 1949;
and September 14, 1949, respectively, the watchman returned to his job on Sep-
tember 13, 1949, and 8 others, including 7 union members or adherents and the.
1 employee who had worn the union button, either resumed or were offered work-
by the Respondent on various dates before or during the last 10 days of Sep-
tember 1949.6
By the last of September 1949, economic conditions had improved to such an
extent that the inventory had decreased to about 23 percent above the average.
of the last quarter of 1948 and sales had increased about 26 percent above the,
June 1, 1949, figures.
The eight employees who were not offered reinstatement were all union mem-
bers or adherents. Those named in the complaint as amended wore union but-
tons while at work and it is clear that this fact was known to the Respondent
whose officials admit awareness of union activity during the spring of 1949,
Seven of these employees testified at the hearing. Five of them were named in
the original complaint and the names of the other three were included in the
motion to amend the complaint, hitherto mentioned.
B The motion to amend the complaint
It is felt necessary to deal individually in this Report with the facts su,r-_
rounding the particular circumstances of each of the five alleged discriminatory
discharges of, and the failure to reinstate the five employees named in para-
graphs VI and VIII of the original complaint as well as with the facts sur-
rounding the circumstances of the additional alleged discriminatory discharge.
of, and the failure to reinstate, the sixth employee whose name I permitted to
be included in the case by allowance in part of the motion to amend the com-
plaint. I shall also, in separate sections, find and discuss the facts relating to,
the allegations concerning Walter H. Early the character of which is somewhat
different from those relating to the other named employees and then proceed to,
dwell upon the evidence relating to the allegations concerning interrogation,
surveillance, threats, warnings, and promises of benefits. But before doing so,
it seems incumbent upon me to refer to the grounds for having allowed in part-
and disallowed in part the motion to amend the complaint.
Charles R. Trufant testified on July 7, 1950, 1 week before the final day of the,
first session when the motion to include his name in the complaint was made.
Taken in the light most favorable to the contentions of the General Counsel and,
assuming the truth of the testimony offered by the General Counsel, it could be,
found that Trufant attended meetings of, and joined the Union in the spring of-
1949, that he wore a union button and talked to other employees about joining,
and signed up members for the Union, that supervisory employees' told him,
Early had been organizing for the Union and that it was against the law to or-
ganize on company time ; that employees of another of the Respondent's plants=
6 One of these employees, Angus C 'Martinez, was not actually offered reemployment
but the Respondent attempted to locate him for the purpose of making such an offer,
only to learn he had moved away from the vicinity
7It was stipulated that the following persons were supervisory employees, within the
meaning of the Act; Roy E Paul, plant superintendent since October 1949; T ;\i Crider,
plant superintendent before October 1949 , Elwin A Holtgrewe, assistant superintendent ,
Thomas W Schneider, master mechanic : A R Croft, yard foreman , Charles A. Hendrick-
son and Lex Hutcheson, operations foremen ; J I3 Brooks, chief electrician , Herbert
Wakeman, mechanical foreman; and Porter G Odom, Tanner Hendricks, Dopglas Q,,Kelley,
and Charles D MIoloncN, plant foremen.
943732-51-66
1026 DECISIONS OF NATIONALiLABOR RELATIONS BOARD
had been called out on a 43-day strike for some trivial grievance that was not
even mentioned after the strike had been called ; that there were so many Com-
munists in the Union that one could not tell what was going to happen ; that
the president of a union in another of the Company's plants had absconded
with union funds ; that there was not anyone in the plant who couldn't be caught
some time or other doing something they shouldn't do or making a mistake for
which he could be fired ; that he was asked what was expected to be gained from
the Union and told that the Respondent would close down the plant before it
would agree to seniority ; that it was common knowledge that the smallest
phosphate company in the fields around Bartou had been selected by the Union
to go out on strike ; that the Respondent was the smallest outfit and would be
selected to go out on strike; that the Company was paying as much if not more
than others in the area ; that he wouldn't get very far with the Company because
he had the wrong attitude toward big business; that he was told that his work
was not satisfactory and that the supervisor didn't give a damn if Trufant
thought it is because of the Union or not and that it would be easier for the
supervisor if the Union should come in because he wouldn't have to tell a man
about his mistakes two or three times but could tell him once and then fire him;
that the plant was in a state of confusion since the Union had started to try to
get in; that the Company had been lax but was going to start bearing down;
and that due to the cut back in production and considering seniority and other
things, they had decided to lay him off for a while and that he would be eligible
for returning.
Evidence adduced by the Respondent, up to the time of the motion to amend
was made, respecting Trufant's individual situation, as differentiated from the
broader allegations of general discriminatory conduct on the part of the Re-
spondent, was substantially limited to assertions that he was discharged for
economic reasons ; that he was not rehired because be was not well qualified
for the job; that the Respondent did not know he was active in procuring union,
members; that he was not told it was against the law for employees to be dis-
cussing union matters together, and that it was not the president of the Union
but the business agent that defalcated in another of the Respondent's plants.
Fully credited, Trufant's testimony would be sufficient, in my opinion, to sup-
port a conclusion of law that some of the statements made to hire by supervisors
went beyond the realm of protected free speech, and that coupled with a finding
of antiunion bias which could be made on all the evidence, his discharge and the
failure to reinstate him was discriminatorily motivated. The Respondent had
no notice of the allegations that Trufant was discharged because of his union
membership, activity, or adherence and that the Respondent's failure to rein-
state him was grounded on considerations proscribed by the Act and accordingly
obviously did not seek to meet these contentions. In the absence of any evidence
directed toward controlling or rebutting the testimony of the witness or evidence
tending to support the General Counsel's contentions regarding Trufant, I had
no adequate opportunity to determine whether or not the evidence was "re-
liable, probative and substantial." Thus the allowance of the motion to amend
the complaint to include the name of this individual was predicated on the
assumption of the credibility of the proponent's evidence, was based upon the
conclusion that the evidence offered by the proponent was more than a scintilla
in value and was such as might conceivably justify a person of ordinary reason
and fairness in finding that the allegations had been sustained. Galloway V.
United States, 319 U S 372. The allowance of time to the Respondent to prepare
and offer any defense it might have, placed all the evidence before the Trial
Examiner and enabled him to apply the tests of reliability, probativeness, and sub-
stantiality with the result disclosed by a latter portion of this Report.
VICTOR CHEMICAL WORKS 1027
John L. Clark testified on July 10, 1950, 4 days before the last trial day of the
first stage of hearing and was recalled on July 14, 1950. Taken in the light most
favorable to the proposed allegations respecting Clark and assuming the truth of
his testimony, it could be found that he joined the Union in 1949, attended union
meetings, talked to employees about joining the Union, passed out cards, signed
up employees, and wore a button while at work ; that he had seen a supervisor
pass by a house where a union meeting was being held, and another supervisor
pass by a hall where another union meeting was being held, and that he was
laid off on June 9, 1950, and never offered reinstatement. It could also be found
that Clark was a mechanic's helper but had done some rigging work on belts and
some' high painting at the Respondent's plant Evidence adduced by the Re-
spondent respecting Clark's individual situation, as differentiated from the
broader allegations of general discriminatory conduct on the part of the Respond-
ent was substantially limited to the assertions that he was not a competent
rigger ; that his layoff was due to lack of seniority and that another more efficient
person was rehired in his stead. Russell E. Macomber, the third employee named
in the motion to amend the complaint, is serving in the United States Navy and
did not testify. One of the Respondent's foremen testified he recalled Macomber's
name being mentioned in connection with recommendations for a layoff and
its master mechanic testified that Macomber was laid off because his job was
abolished.
In denying that part of the General Counsel's motion which sought to include
Clark and Macomber among the list of those alleged to have been discrimina-
torily treated, I assumed in favor of the party against whom the ruling was
made, the credibility of the testimony concerning these employees and con-
-eluded that the evidence was not sufficient to support the allegations. To find
otherwise on such slight evidence would, I believe, be an insupportable act
,of partiality which would require the ruling to be ,Pt aside for lack of reliable,
probative, and substantial evidence., "Mere speculation cannot- be allowed to
do duty for probative facts, after making all reasonably possible inferences
favoring the party whose case is attacked." Galloway v. United States, 319
U. S. 372, supra. The General Counsel had rested before filing his motion and
even if it could be deemed to have been within the proper exercise of the
'Trial Examiner's discretion to allow, and he had allowed, the motion in toto,
the consequent affording the Respondent time and opportunity to defend against
contentions that had not been proved would have been a futility.
C The discharges and failures to reinstate
Before considering the particular fads relating to the individual instances
of employees Fox, McCollom, Murphy, Sanford, Trufant, and Watford, attention
will be focused on the conflicting viewpoints and on the general setting in
which the events leading to the issuance of the complaint occurred. No at-
tempt will be made to recite all the evidence contained in the 1,020-page official
report of proceedings and the 60-odd exhibits in this case. The findings of
fact are based upon substantial credited evidence Such portions of the evi-
dence as are not referred to have been regarded as cumulative, immaterial to
the issues, or of questionable probative value. In those instances where there
has been contradictory testimony among the 36 witnesses, the Trial Examiner
has resolved the conflicts upon a basis of credibility, a discussion of every
example of which would extend this Report to inordinate lengths. Although
it is felt necessary to set forth, for purposes of clarity and understanding, con-
siderable detail concerning the individual situations applying to each of the
6 employees named in paragraphs VI and VIII of the complaint as amended,
concerning the general allegations of coercion and relating to the defenses
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
relied upon by the Respondent, such attempt at conciseness as is compatible
with the requirements of a report that "shall include a statement of (1) findings
and conclusions, as well as the reasons or basis therefor, upon all material
issues of fact, law, or discretion presented on the record; and (2) the appropriate
rule, order, sanction, relief or denial thereof"' will be made
t
1. The contentions
The General Counsel urges that on short notice the Respondent laid off em-
ployees Fox, McCollom, Murphy, Sanford, Trufant, and Watford on June 9, 1949,
in the midst of an intensive campaign of interrogation, warnings that the Union
would do no good and threats to shut down the plant ; that of the 19 laid off at
that time, 15 were union members and 1 wore a union button prominently dis-
played ; that of the remaining 3, 1 was not in the unit and 2 others who were
not union members were rehired first or among the first; that the purpose of
interrogations and warnings was to sample out how an election would go ; that
the interrogations, threats, and warnings occurred shortly before and following
the filing by the Union of a petition for certification and reached their intensity
right after the petition was filed ; that no union men were rehired until after
the election held on August 22, 1949; that the Respondent characterized the
layoff of June 9, 1949, as a temporary layoff and later, as to the 6 employees
involved, called it a permanent separation, despite the fact that others who were
laid off were recalled or offered reemployment ; that the Respondent created
an alleged economic situation itself in order to win the election by getting rid
of what it thought was a sufficient number of union members ; that McCollom
and Fox were well trained and competent mechanics who had been employed:
for approximately 2 years before June 9, 1949; that they were not selected
for layoff by reason of any inefficiency ; that nothing significant was brought
out as to why Murphy, Sanford, Trufant, and Watford were selected for layoff
in the light of the Company's policy against straight seniority ; that McCollom
was financial secretary of the Union ; that Fox had told the Company he had
switched from antiunion in 1948 to prounion in 1949; that the Company knew
Sanford had been the No. 1 man to pay union dues ; that Murphy, Trufant, and
Watford had been called into the office just before they were laid off, allowed
to explain why they were wearing union buttons and permitted to recite why
they wanted a union in the plant; that in order to attempt $o win the election
the Respondent adopted a scheme of selection for layoffs that would insure
sufficient confusion to enable it to defend against any later charge that it had
discriminated against union members and, accordingly, in order to make things
look right, included in the layoff a couple of nonunion members whom they im-
mediately rehired, a man not, in the union and caught Financial Secretary
McColloni ; that after the Union won the election despite the successful chal-
lenges of the ballots of Fox, McCollom, Murphy, Sanford, Trufant, Watford, and
6 others who had been employed by the Respondent previous to the election,
and after the Company's objections to the election had been overruled and dis-
missed, the Respondent deemed it wise, as a defensive device, to rehire some
of the union members ; that the fact that after another union member discharges
named Tillman had declined reemployment, the position was not offered to
Trufant, proves that the Respondent felt it had sufficiently established a de-
fensive device by the offer. to Tillman ; that although about 40 persons were rehired
between September 21 and November 10, 1949, none of the employees included in
"Administrative Procedure Act, Section 8 (b).
In my opinion the evidence does not support a contention that the decrease in business
before June 9, 1949, resulted from any condition "created" by the Respondent.
VICTOR CHEMICAL WORKS 1029
the complaint were considered; that an employee who was hired in October was
later asked by a supervisor if he had been pressured to join the Union and told
that the supervisor did not want anyone to make him join the Union if he didn't
want to ; that another employee was hired to work in the same general capacity
as some of the men involved in the discharge; that Murphy, although he in-
formed the Respondent he was in bad need of a job, was not rehired; that
Watford's application for rehiring was denied even to the extent of offering him
a lower paying position despite approximately 40 hirings.
With respect to Walter H. Early, the General Counsel asserts that the
•credibility of his testimony in the face of varying denials by supervisory
employees, establishes the extent of treatment leading to his forced discharge
on August 30, 1949, that Early was the leader-the local president-of the
Union and became the target of an antiunion campaign; that although his status
as an employee had to be maintained to obviate the obvious, everything short
of actual discharge was practiced against him; that he was threatened and
promised benefits in an effort to ward off union success and isolated from his
fellow workers and restricted to the electric shop as testified to by witness after
witness, that a torrent of abuse warranted his resignation, that he bore all the
Respondent could throw at him, short of discharge and not until the Union
won the election did he succumb to the Respondent's pressure designed to make
him quit; and that an order given Early to complete an estimated 3 days work
in 1 hour, finally resulted in the long-sought resignation
The Respondent urges with equal insistence that Early's testimony and appear-
ance on the stand suggest that he was and is a man of extreiine egotism, suffer-
ing from a persecution complex ; that he was treated no differently than his non-
union partner who performed the same type of work; that his testimony was so
replete with inaccuracies as to render it unworthy of belief, that he quit his
employment because another employee, who was friendly, quit after a reprimand;
that he never complained to his supervisor that his job was being made so im-
possible that he had no alternative but to resign ; and that there is no proof
that the Respondent assigned him more arduous tasks than those to which lie
normally would have been assigned or that he was constructively discharged.
The Respondent takes the position that following a layoff of 15 employees in
April 1949, an increase in inventory became so extremely critical in May and
June 1949 despite a continual reduction in the production rate, that it justified
the June 9 layoff of 20 employees, previously •$elected on the basis of letting go
(1) all employees hired during 1949 regardless of ability and qualification,
(2) all employees in job classifications that were to be abolished except those
who had special ability or qualifications to fill remaining jobs, and (3) remaining
employees of lesser seniority, merit, ability, and qualifications to perform the
jobs available; and that it was on this basis that Murphy, Sanford, Trufant, and
Watford were laid off in the nodulizing department and that Fox and McCollom
were laid off in the mechanical and electrical department The Respondent
asserts that of the 21 union member employees in the nodulizing department,
12 were affected by the June 9 layoff, 2 union members and 1 nonunion member
were given other jobs ; 9 were laid off of whom 510 were union members and
the 4 nonunion members remaining in the department each had greater seniority
1° Mathematically, it is clear that since of the 28 employees thel e were 21 union
member employees in this department, that of the 7 nonunion members, 1 was transferred,
that 9 employees were laid off, that 4 nonunion members were not' laid off, it must
follow that 7 rather than 5 of the 9 laid -off employees were union members Theie
immediately aiises the natural query as to whether the 2 laid -off nonunion members have
been reinstated and whether they had more or less seniority , merit , ability, and qualifica-
tions to perform the jobs available than Murphy, Sanford , Trufant, and Watford.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than any employee laid off. It points out that of the 17 employees in the
mechanical and electrical department, all but 4 were union members and that
all 6 laid off were union members, argues that if one of the 6 laid off had been
a nonunion member, the ratio of union members to nonunion members laid off
would have been maintained, and contends that there was an over-all ratio of
union member layoffs to union member employment such as to render sheerly
speculative the inference of discrimination against the 6 employees named in
the complaint.
The Respondent further asserts that there is no evidence that Murphy was
selected for layoff for any reason other than the fact he was particularly ineffi-
cient and difficult to work with; that Sanford's testimony is not to be believed,
that he was selected for layoff because he had the least seniority as a first helper
and was neither an efficient nor a willing worker, and that there is no credible
evidence to support an inference that he was selected for layoff other than the
fact he was not an efficient first helper or a willing worker ; that the reason
Watford was, selected for layoff -was because his job,.was abolished„.because he
continually fell asleep on the job despite warnings and failed to perform his
job properly, and his testimony that he was interrogated concerning his union
attitude should not be credited ; that Trufant was selected for layoff on June 9,
because during the 3 or 4 months immediately preceding that date he evidenced
an extremely careless attitude about the responsibilities of his job, that his
version of statements attributed to supervisors that the plant would close or rust
to the ground before the Respondent would grant seniority are inherently incred-
ible, that Trufant's testimony regarding a supervisor's assertion that the plant
was in a state of confusion and he was going to start bearing down, whether true
or not, cannot be used as the basis of an inference that the Respondent discrimi-
nated against him; and that Trufant's membership in the Union and moderate
activity in its organizational campaign constitutes insufficient grounds for a
finding of discriminatory discharge; that McCollom was laid off on the basis of
seniority and lack of merit and special qualifications, that he was fifth from the
bottom in rank of seniority, that the fourth and third below him, were not union
members and were retained because of special abilities and qualifications, that
the fourth below nim who was a union member was not laid off and had special
ability as a welder and that the fifth below him at the bottom of the seniority list
was financial secretary of the Union, laid off and later rehired, that McCollom's
testimony of several instances where supervision inquired concerning his atti-
tude toward the Union is not credible and that the Respondent's general manager
slid not know he was an officer of the Union during its organizational period ; that
Fox was laid off on the basis of his seniority and lack of merit and qualifications,
that he had greater seniority than three others in his department, one of whom
was a relief foreman and the other of whom was a rigger, that other employees
with less seniority were laid off or retained, that he was not able to do the jobs
of rigging, welding, or pipe fitting because of a physical handicap of his legs,
that he did a considerable amount of loafing on the job, that he was a thoroughly
unreliable witness, that he was not active in the organizational campaign, and
that there is no substantial evidence to support a finding he was selected for
layoff because of his union membership and activity.
The Respondent further maintains it refused to reinstate the six employees
for the same reasons which prompted their selection for layoff in the first in-
stance, that it has been able to obtain men better qualified than those involved
in these proceedings, that it rehired two union members and one presumable
union member, and sought to rehire two union members since the layoff ; that
even if true, evidence relating to supervisory inquiries concerning the buying of
VICTOR CHEMICAL WORKS 1031
the colored vote, as to whether an employee was for the union and a request to.
be informed of union solicitation do not justify disturbing the settlement agree-
ment of July 27, 1949; that there was no surveillance and no substantial evidence
that,the Respondent threatened and warned employees to refrain from assisting,
becoming members of, or remaining members of the Union ; that prepared talks
given to employees by management were stopped during May 1949 and consisted
only of an outline of the history of the Respondent and the various benefits enur-
ing to employees; and that supervision had nothing to do with the preparation
of and procuring signatures to a petition to hold a new election, that was circu-
lated about August 31, 1949.
In such a discordant climate of contention and assertion must I explore the
lodes of evidence for the crude ore of truth and seek to refine it into the pure
metal of fact.
2. The setting
The six employees in section C of this Report, with whose layoffs on June 9,
1949, we are concerned, had worked for the Respondent for 18 months to 2 years.
During the period of 1 month before June 9," various members of management
"The dates of these meetings, during which it is alleged supervisors made coercive
statements to and interrogated employees concerning their union membership and activi-
ties, become important in connection with a consideration of the applicability of Section 10.
(b). The original charge in Case No. 10-CA-702 was filed on May 5, 1949, and the
first amended charge in Case No. 10-CA-702 was filed May 10, 1949. The original charge
in Case No .10-CA-820 was filed on September 1, 1949
Assistant Superintendent Holtgi ewe testified as follows:
Q Mr. Holtgrewe, during the period of, a month or so, two months possibly,
before the layoff of June 9, 1949, did you participate with Mr. Schneider, Mr.
Hendrickson, Mr. Hutcheson and possibly some others of management, in calling
some of the employees into the office and talking with them individually or in groups
of two, possibly?
A. I did.
Q Do you recall for about what length of time or period you and the group,
engaged in either joint conferences with the men or you yourself talked with the
men along those lines prior to the layoff of June 9th?
A. Well, that is something that goes on forever. It starts when you start opera-
tion, and keeps going. If you are referring to any particular period of time-
Q I am referring to approximately two months before the layoff, just about that
period
A. Yes, we probably carried on discussions of that kind for two weeks.
Various employees placed the meetings and statements as having taken place as follows:
McCollom-maybe a month before the election ;
Fox-near the middle of May ;
Sanford-two weeks before the layoff;-
Murphy-during May ;
Davis-about May 16;
Fowler-about the first of May ; six weeks after joining the Union in April ;
Sigmon-two weeks after putting button on in May ;
Williams-last of May ;
Tillman-close to a month before the layoff.
On this evidence I find that the alleged unfair labor practices that arose by virtue of
and during the course of these assemblies, occurred within 6 months of the filing of the
original charge on November 9, 1949, and the service of a copy thereof in Case No.
10-CA-889. I also find that these practices occurred and other alleged discriminatory
and coercive conduct of the Respondent, which will be referred to more particularly in
subsections 3-8 and sections D and E of part III of this Report, took place within 6
months of the filing of the original charge and the service of a copy thereof in Case
No. 10-CA-820. I further find, contrary to-the contentions of the Respondent that the
alleged discriminatory interrogation, surveillance, threatening, and promising of benefits
for refraining from union participation have hot been eliminated by a settlement agreement
in Case No. 10-CA-702. As pointed out in part III section A of this Report, the requested
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participated in calling employees, either individually or in couples, into the
-office and in giving them a prepared talk about the history and pospects of the
Company, its policy of living and operating by the Golden Rule,-of paying
wages equal to or higher than those paid in the community for similar work, and
its paid insurance and vacation plans. Master Mechanic Schneider testified that
.supervisors were aware of union activity in the plant and had agreed together
that they would talk to all their men. The avowed purpose of these sessions
was to attempt to clarify doubts which had been expressed by some of the em-
ployees as to the effect upon them of "wrong action " Employees were told that
the Respondent was neutral but the Company's "side of the story" was empha-
sized. During the interviews at Tarpon Springs, the Company made it clear
that it did not favor unionization. Other statements made by supervisors will be
referred to in subsections 3-3 and sections D and E in connection with more
detailed findings concerning six individual employees, the alleged discriminatory
constructive discharge of Walter H. Early, and other alleged coercive conduct.
The Respondent had laid off a number of employees in April 1949. Charges
-that these layoffs were discriminatory had been filed and a settlement ensued.
.In contemplation of the necessity or desirability of a second reduction in force,
the Respondent's general per sonnet director canvassed the situation with the
supervisors at Tarpon Springs and arrived at the following asserted basis of
selection: First, the supervisory personnel was instructed to check the list of
-employees under their direction and to make recommendations chiefly on the
basis of seniority, taking into consideration the ability and qualifications of the
_men to do their jobs Initially all employees who had been employed in 1949 were
.placed on the list for release, then certain work classifications were discontinued
.and with the exception of employees claimed to possess special ability, employees
in these classifications were marked for separation.
The 13 employees who are not included in the complaint as amended, were
laid off on June 9, 1949, on the following basis: Tillman, the newest of 5 furnace
first helpers ; Batton and Casey, the newest of 4 furnace second helpers, a classi-
fication which was discontinued, the 2 oldest employees having been transferred
-to a clean-up and a watchman job; Whytsell, Martinez, Krahtz, and Hendley,
-process laborers, whose job classification was discontinued; Frierson, splitiman,
replaced by Burke who had been hired years before him, and whose job as R. M.
operator was discontinued; Jackson, newest of S yard laborers; Bunnell, the
newest of 13 maintenance mechanics ; Clark and Griffin, the newest of 3 me-
'chanic's helpers ; and Macomber, the only instrument mechanic. The Respond-
ent was willing to, or did, rehire all of these employees except Clark and
-Macomber.
-withdrawal of the charge in Case No 10-CA-702 following the execution of the Settle-
-ment Agreement did not become effective because the Regional Director, in view of the
filing of a charge in Case No. 10-CA-820, was not satisfied that the provisions of the
agreement had been carried out. It is still further found that such other alleged
discnmmatory conduct on the part of the Respondent as took place before May 9,
1949, occurred within 6 months of the filing of the original charge and the service
of a copy thereof in Case No 10-CA-702 It is to be noted not only that all of the
charges contained general allegations of interference with, coercion, and restraint of
employees in the exercise of their rights as guaranteed in Section 7 of the Act, that the
last amended charges allude to matters arising out of the conduct set forth in the original
charges, and therefore relate back to the date of the original charges, (Kansas Milling Co ,
86 NLRB 925) that the 6-month proviso of Section 10 (b) does not require that the
charge specify or particularize each unfair labor practice to be litigated (J ]I Ratter-Rem
Mf(j Co Inc., 86 NLRB 470) but also that the function of a charge is not to serve as n
pleading and to frame issues but merely to set in motion the Board's investigatory
machinery for the purpose of ascertaining whether a complaint should issue (Cathey
Lumber Company, 86 NLRB 157).
VICTOR CHEMICAL WORKS 1033
The 6 employees, named in paragraphs VI and VIII of the complaint as
amended, who were laid off June 9, 1949, were Sanford, stated to be the newest
of 4 nodule first helpers ; Watford, the newest of 4 R. M. operators, which job
classification was discontinued; Murphy and Trufant, 2 of the 4 splitmen, 3 of
whom were laid off, whose special jobs were taken over by employees of 6
months and 21/2 years greater respective seniority ; and Fox, the eighth newest
and McCollom, the fifth newest of 13 maintenance machanics
The Respondent informed most, if not all, of the 19 employees that they were
being laid off because of business conditions and that it was hoped they could
soon be rehired. Fox, McCollom, and Sanford applied for reinstatement by
letter. The Respondent has been unwilling to rehire either of them or Murphy,
Trufant, and Watford.
Between September 21, 1949, and November 22, 1949, the Respondent hired
27 process laborers, 1 electrician's helper, 6 yard laborers, and 3 maintenance
mechanics During the period from September 21, 1949, to July 5, 1950, the
Respondent hifedas new employees, 6 maintenance mechanics (tile classification
in which Fox and McCollom had worked). Also employed as new men during
this period in lesser jobs than had been occupied by Fox and McCollom, were
14 mechanical helpers and 2 mechanics, second class. It was the usual policy
of the Respondent to promote employees along a path from raw material helper
or process laborer to second helper (occasionally tQ raw material operator),
or to first helper and on up the line. Sanford received 3 promotions in a year.
Watford was promoted once. Murphy had moved up from pipe fitter's helper
to kiln split-shift operator working as process laborer, limehouse operator,
nodule second helper, nodule first helper, and nodule operator. At the time of
his layoff Trufant's job as furnace split-shift operator was very similar to
Murphy's on the kiln.
No new employees hired during the period from September 21, 1949, to July
5, 1950, were shown to have started off working in Sanfoid's classification of
nodule first helper, Watford's classification of R. M. operator, or Murphy's and
Trufant's classification of splitman. The work they were doing when laid off
was at first apportioned among retained employees. The Respondent employed
123 hourly paid workers on January 1, 112 on March 1, 78 on July 1, and 94 on
October 1, 1949, and 111 on January 1, 1950. Business increased during the last
6 months of 1949 and the load of production reached capacity again in December
1949. The increase in force between July 1, 1949, and January 1, 1950, was
composed in part by the rehiring of at least 6 employees who had been laid off
on June 9, 1949, and the new hiring of at least 27 process and yard laborers and
sample learners, some of whom quit before the end of the year.
Other factors common to all the cases, important to a grasp of the milieu in
which the Respondent's alleged discriminatory conduct took place, are that fol-
lowing the April 5, 1949, layoff of some 10 to 15 employees, the organizational!
efforts of the Union became increasingly active. A representation petition was
filed on April 21 and a large number of employees began to wear union buttons
about May 15. Employees voiced to management their fear of insecurity as
reason for their favoring the establishment of a union. At least 1 employee who,
has obtained work elsewhere since June 9, 1949, and whose testimony is credited,
was told by management that unionization would result in the plant being struck.
The employees involved in the layoff were informed or led to believe that they
would be rehired if and when business improved. The Respondent admitted
at the representation hearing on June 16, 1949, that the men laid off on June 9
were not discharged for cause or any fault whatsoever on their part. At the
hearing in the instant case the Respondent asserted it never had the intention
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-of rehiring the employees named in the complaint although its consistent policy
has been to rehire laid off employees whom it had trained at great expense.
Within this framework, individual details relating to the discharges of and
-the failure to reinstate the six employees included in the complaint may now be
-more minutely viewed and conclusions reached.
3. Joseph H. Fox
Fox worked from June 30, 1947, to June 9, 1949, as a maintenance mechanic
in the mechanical and electrical department. He joined the Union in mid-April
1949. Master Mechanic Schneider knew that he had been opposed to unioniza-
tion of the plant in 1948 and asked him in 1949 how he then felt about the subject.
Fox informed Schneider that he had come to the point of favoring the Union.
Schneider predicted that there would be a strike if the Union should come in
and stated that the employees might lose their insurance and vacation privileges.
Schneider stated he felt that the employees could get along without a union and
pointed out the strong points against unionization from the Company's viewpoint.
When Fox was laid off he was informed it was due to economic reasons, that
the extent of the layoff was of indefinite duration, and that the picture might
change. Fox requested reinstatement by letter on September 28, 1949, and
received a letter in reply that he had ceased to be an employee on or about June
'9, 1949. Fox's request to be put on as a pipe fitter, rigger, or machinist if he
couldn't get the job be had formerly been doing in the mechanical and electrical
department, was refused. Schneider testified he considered Fox not physically
,qualified to do the type of work requested. Employee Bunnell, a union member,
who was a newer employee than Fox, was selected for reemployment in prefer-
ence to Fox on September 26, 1949. The Respondent's explanation that Bunnell
was favored because he was considered to have more desirable qualifications,
which included in addition to competency to perform more than routine mechani-
'cal work, some carpentry and sign-painting ability, is unconvincing. The Re-
spondent points out that of the 17 employees in Fox's department all but 4 were
union members and all 6 laid off were union members. The Respondent was
willing to rehire all but Fox and McCollom.
In'the light of all the evidence including the entire background, the immediate
setting, the factors common to all the dischargees who were not reemployed, and
the particular situation surrounding Fox's discharge, and the Respondent's re-
fusal to rehire him, I conclude, having in mind the Respondent's opposition to
unionization*of its plant, that the Respondent's conduct in refusing to reinstate
Joseph H Fox was motivated by reasons interdicted by the Act. As in other
instances to follow, it appears to me that the basis for selection of all 19 union
and nonunion members for layoff on June 9, 1949, has not been proven by a pre-
ponderance of the evidence primarily to have been discriminatory. During the
-first 5 months of 1949, the Respondent's inventory of phosphorous had markedly
increased and there had been some reduction in sales. By June, although the
Respondent had continually reduced its production rate, as shown by a lessening
in consumption of electrical current from 16,000 kilowatt-hours per day in Janu-
ary, to a low of 6,000 kilowatt-hours on June 25, 1949, the lack of storage space
for phosphorous presented a ciitical problem which justified a reduction in force.
Although there is some doubt as to the real reason for the Respondent's choice
of Fox and the 5 other employees named in the complaint for layoff among the
13 others, I consider the probability that these layoffs were occasioned by justi-
fiable economic reasons, greater than the probability that they were due to the
Respondent's objections to union activities. Quite a different situation is pre-
sented with respect to a consideration of Respondent's conduct in refusing Fox
VICTOR CHEMICAL WORKS 1035
end the 5 others reemployment.12 There was no valid economic reason for their
not having been given back their jobs The Respondent, in face of the facts-that
by the last of September 1949 economic conditions had improved to such an
.extent that its inventory had decreased from about 75 percent to about 23 percent
above the average of the last quarter of 1948 and sales had in creased, about 26
percent above the June 1, 1949, figure, that it rehired at least 6 employees and
.sought to rehire others who had been laid off, that after September 21, 1949, it
hired as new employees 6 maintenance mechanics (the classification in which
Fox and McCollom worked), 14 mechanical helpers, and at least 27 process and
yard laborers, cannot successfully contend that the refusals to rehire were due
,to economic reasons.
In its brief, the Respondent argues that employees, including Fox, were chosen
for layoff and were not rehired, among other reasons, for "lack of merit." I am
tunable to find any testimony which satisfies me that Fox was a less meritorious
-employee than others with less seniority who were retained in the Company's
-employ. Plant Foreman Odom testified he was a fair workman. Operations
Foreman Hendrickson regarded Fox as a qualified workman. Even Schneider
conceded he was an average worker I do not believe that because Fox would
wait from 30 to 45 minutes for the smoke to clear after tapping the furnace and
then grease it, when he could have gone somewhere else in the meantime, was the
Teal reason for the infliction upon him of so harsh a penalty as refusing to re-
employ him. There is no evidence that this method of tapping the furnace was
disapproved or that Fox was requested to adopt any other. To advance this
flimsy excuse for its conduct, negatives the idea this man was refused reem-
ploynient because he lacked merit or was inefficient. He had worked at Tarpon
Springs since over 4 months before the plant started in operation That he did
not lack seniority is clear. It becomes equally clear that the Respondent who
had relied upon Fox as a leader of the antiunion faction of employees and as
a campaigner against unionism in 1948, was disturbed when he told Master
Mechanic Schneider in the late spring of 1949 that he had become a union advo-
cate. In summary I find that the Respondent 's refusal to reinstate Joseph H.
Fox was for the purpose of discouraging union activity and membership and that
such conduct interfered with, restrained, and coerced the Respondent's employees
in the exercise of the rights guaranteed in Section 7 of the Act and thereby
violated Section 8 (a) (1) and (3) of the Act.
:Since I have concluded that Fox's discharge-was not discriminatory, I obvi-
'ously shall not recommend that he be made whole for any loss he may have
suffered from the date of the discharge. I shall, however, recommend that he
be made whole for any loss he may have sustained by reason of the Respondent's
discriminatory conduct since the date it unlawfully refused him reinstatement.
Fox requested reemployment on September 28, 1949. The Respondent's letter
of October 4, 1949, stating that he ceased to be an employee on June 9, 1949, con-
stituted a refusal to rehire. By that date, business had improved to such an
'extent that the economic conditions which I have found justified the Respondent
in laying off Fox had ceased to exist and I shall recommend October 4, 1949,"
"Whether Fox and others similarly situated were laid off and refused reemployment
'or simply refused reemployment the result is essentially the same Refusal to employ
because of union affiliation and activity is equally as discriminatory as a discharge for
the same reason Phelps Dodge Corp. v. N. L R B, 313 U S. 177.
18 Shortly after October 1, 1949, the inventory had dropped to a point about even with
the average of the last quarter of 1948 from a point on June 1, 1949, about 75 percent
higher than the same average Sales had increased about 20 percent in the same period,
the Respondent had increased its force of hourly paid workers from 78 on July 1 to 94
on October 1 and continued to increase it thereafter up to at least January 1, 1950.
By December 1949 the full load of production had resumed.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the date of discrimination upon which the payment of any loss accruing to
Fox as a result of the Respondent's unlawful conduct shall commence
4. William C. McCollom
As in the case of Fox already discussed and in the instances of Murphy, San-
ford, Trufant, and Watford, remaining to be considered, the Respondent laid.
off McCollom before the election and refused to rehire him after the election at
a time it still manifested its opposition to union activities by admittedly asking
employee Kelly, who was hired in October 1949, if anyone was putting pressure
on him to join the Union and on Kelly's credited testimony that he was offered
protection by Master Mechanic Schneider from union solicitation and requested
to report any instances of such solicitation.
McCollom worked from shortly before November 11, 1947, when the plant first
started operations until June 9, 1949. At first he installed elevators and later
became a maintenance mechanic in the mechanical and electrical department
under Master Mechanic Schneider. He joined the Union in March or April 1949,
was elected secretary and treasurer, and was continuing to hold this position on
September 6, 1949 (see Respondent's Exhibit No. 4). He wore a union button
for about a month. Schneider, who was aware of union activity in the plant,
asked him why he thought the employees needed a union, and told him some facts
about the history of the plant. McCollom testified briefly in the representation
case concerning the identity of persons issuing materials from the storeroom.
When he was laid off on June 9 from the mechanical and electrical department
where were employed, as pointed out by the Respondent, 13 union members 6
of whom were laid off and 4 nonunion members none of whom were laid off,
Plant Superintendent Crider told him he did not know how long it was going to
be McCollom requested reinstatement by letters dated September 12 and October
27, 1949, and received a reply to the first letter stating that lie had ceased to be
an employee on June 9, 1949. At least 2 nonunion maintenance mechanics of
less seniority than'McColloni were not discharged. Employee Bunnell, who was
a union member and had the least seniority of any maintenance mechanic, was
rehired and Kelly was newly hired in October to do work as maintenance
mechanics. It is manifest that McCollom was not refused reemployment because
of any lack of seniority Was he denied the work he requested on September
12 and October 27 because he lacked ability? Plant Foreman Odom testified his
work was fair. Master Mechanic Schneider considered him a fair-mechanic On
the testimony of Personnel Director Paul, some of the employees that were hired
'after McCollom and the other employees named in the complaint were laid off,
were better and some of those the Respondent got were a lot worse than those
who were not rehired. General Personnel Director Coffelt testified that mis-
takes in selection were made, that some employees did not prove efficient. The
Respondent contends that his spending time talking to other employees and his
lack of special skill, ability, or qualifications were reasons for McCollom's layoff
and its unwillingness to hire him back. I do not agree. The evidence does not
satisfy me that McCollom, who had worked for the Respondent since before the
plant started operations in November 1947, was any more lacking in skill or ability
than other employees retained in, rehired, or newly hired into,14 or presumably
under its promotion policy advanced into, McCollom's job or that any lack of
"special skill" on his part disqualified him for employment until the time union
agitation and "confusion" were reaching their peak. It is improbable that an
14 "The unexplained hiring of inexperienced nonunion employees in preference to union
employees active in the affairs of the union is sufficient to create a reasonable inference
of discrimination ." Reliance Mfg. Co. v. N. L. R. B , 125 F. 2d 311, 315-316 (C. A. 7).
VICTOR CHEMICAL WORKS 1037
employer would hire novices in preference to an experience mechanic on the flimsy
grounds advanced Nor do I agree that the Respondent's conduct was influenced
by the fact that McCollom engaged in genei at conversation with other employees ;
rather do I conclude that its attitude toward him was affected by his talking
as a union officer with employees about union matters. McCollom freely ad-
mitted that he talked with other employees about,union matters, as is indicated,
for example, by his response to Operations Foreman Hendrickson's inquiry at
shift-changing time, that he was not having a safety meeting but was having a
union meeting.
Contrary to the General Counsel's contentions, I find for reasons previously
set forth that McCollom was not discriminatorily laid off but was laid off for
genuine economic reasons. Contrary to the contentions of the Respondent I do
conclude, for reasons also previously outlined in the discussion of Fox's in-
dividual situation, that its refusal to rehire him was discriminatory, and find that
such refusal was for the purpose of discouraging union activity and membership
and was conduct which interfered with, restrained, and coerced the Respondent's
employees in the exercise of the rights guaranteed in Section 7 of the Act and
thereby violated Section 8 (a) (1) and (3) of the Act.
I shall recommend October 1, 1949, as the dateof discrimination upon which
the payment of any loss accruing to McCollom as a result of the Respondent's
unlawful conduct shall commence. The Respondent replied on September 15,
1949, to McCollom's letter of September 12 stating he was ready and willing to
return to work. Although it might be argued that this response placed some
burden on the employee to reply that he continued to demand reemployment,
despite the Respondent's claim he had ceased to be an employee on June 9,
before lie did reply on October 27, I consider that the September 15 letter, was
equivalent to a refusal The date of October 1 rather than September 15 is
selected because the evidence, as previously pointed out, shows that on or
about that elate the economic conditions that warranted the layoff ceased to
prevail.
5. William C. Murphy
Murphy went to work for the Respondent during the month of October 1947.
At first he was a pipe fitter's helper and later was a kiln operator for 4 or 5
months. For some time before he joined the Union in the spring of 1949 lie had
been a split-shift operator on the kiln. This work involved relieving a nodule
operator one day, a nodule first helper the following day, a nodule second
helper the third day, a process laborer feeding the kiln the next day, and the
limehouse operator on the fifth day. This position required a working knowl-
edge of all the jobs, the most complicated of which and the one involving the
most responsibility being that of kiln operator. He attended several union
meetings, wore a union button, and along in May, Operations Foreman Hendrick-
son, Assistant Superintendent Holtgrewe, Operations Foreman Hutcheson, and
Plant Foreman O'Kelley were in Holtgrewe's office to which Murphy was
called, together with employee Sherwood, a nonunion member. There he was
told what the Company had done for its employees by way of vacations and
annuity insurance and Holtgrewe asked him what he expected to gain by
having a union in the shop. Operations Foreman Hendrickson told him that
the plant would never sign a contract providing seniority. When he was laid
off with the 19 other employees on June 9, 1949, he understood it to be tempo-
rary His requests for reinstatement in September and November were not
granted. In November he was promised he would be recommended for the
next opening and stated that he would accept any kind of work. I have no
hesitation in finding that Murphy was laid off on account of justifiable economic
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
conditions The testimony adduced by the General-Counsel as to the reason.
he was not rehired is scanty. It appears that he had gained experience in at
fairly wide variety of work and that the Respondent's unwillingness to take
him back was not premised upon any lack of seniority. In the absence of ani
explanation it is somewhat difficult to understand why he was not taken back
along, with such a man as Sims, some of the other 19 employees who were
laid off, or instead of the numerous new employees, some of whom presumably
were advanced to jobs similar to those he had filled. The Respondent's opposi-
tionist attitude toward the unionization of its plant both before and after
the election, gives rise to the suspicion that it was motivated by its antiunion
attitude in dealing with Murphy But conjecture cannot substitute for fact
The Respondent has shown by a fair preponderance of the evidence that Murphy
was a difficult man to work with, that he had been insubordinate, careless,.
neglectful, and lazy. It cannot be said that the reasons for not rehiring this mane
are fanciful or trivial. The reasons given by the Respondent tend to explain
its conduct in not taking him back which, without explanation, would not be
so apparent.
I conclude that the General Counsel has not proven the allegation that Murphy
was discriminatorily discharged or that the failure to reemploy him was conduct
of a character that is violative of the Act. Therefore I shall recommend dis-
missal of that portion of the complaint that refers to William C. Murphy.
6. Vaughn B Sanford
Sanford started working for the Respondent March 30, 1948, as a process la-
borer and worked up to nodule second helper, thence to nodule first helper, i. e.,.
first helper at the kiln, under Operations Foreman Hendrickson. He attended
union meetings, wore buttons, and distributed application cards in the plant.
A few days after he had joined the Union, Hendrickson remarked that he had
heard that Sanford, who was the first member to pay dues and had been re-
ferred to as the number one man at the union meeting, was "number one man."
He was called into t3oltgrewe's office and asked in the presence of other super--
visors if he was and Why he Wanted to be a union member, told how the plant
operated and about benefits like insurance and vacations to be derived from
working for the Company, and shown the seniority clause in the contract with
the Union at the Respondent's Mt. Pleasant plant. Employee Lisenby, who did
not join the Union and was one of the petitioners to set aside the election was-
present at this meeting. When he was laid off on June 9, 1949, he was informed
he would have to be included with others due to lack of seniority and that he-
was more than likely to get his job back. Sanford had appeared on behalf of-
the Union at the representation hearing on June 16, 1949, where he questioned-
Assistant Superintendent Holtgrewe concerning job classifications He requested
reinstatement by letter on September 15, .1949, and received a reply from the-
Respondent that he ceased to be an employee on June 9, 1949.
Sanford's job was assigned to Louis Washer who had been an R. M operator.
Four nodule second helpers with less seniority than Sanford were not laid oft.,
The Respondent claims he was not rehired because he was too talkative, too
critical, and less efficient than other men who were later employed. Plant Fore-
man Moloney testified Sanford was an agitator.
It is clear from the testimony of such of the Respondent's supervisors as
Operations Foreman Charles A. Hendrickson that he had no complaint about
Sanford's work, that he would work and would do almost anything, that if he-
applied himself he would have been very capable and that the job of nodule first
helper he held at the time of the layoff carried quite a bit of responsibility. Planti
VICTOR CHEMICAL WORKS 10391
Foreman Odom and O'Kelley both characterized Sanford as a fairly good worker.
It is equally apparent from the record and my observation of Sanford as a wit-
ness, that he is a voluble and outspoken individual who was a forceful exponent-
of the employees and the union viewpoint. My conclusion is that Sanford was
not laid off or denied reinstatement on account of any lack of efficiency or senior-
ity but that he was not reemployed when business improved because the Re-
spondent felt disinclined to return to its force the Union's first member and_
one of its ablest advocates. As in the case of other persons laid off on June 9,
I am not satisfied that the Respondent took advantage of the economic reduction
of operations to discriminatorily get rid of Sanford. I am satisfied and find, how-
ever, that its refusal to reemploy him, once its business had picked up to a_
point equal or higher than it had been for some time before June, was impelled-
by a discriminatory intent, by a desire to discourage union activity and mem--
bership,' and was conduct which interfered with, restrained, and coerced its.
employees in the exercise of rights guaranteed them by Section 7 of the Act,-
thereby violating Section 8 (a) (1) and (3) of the Act.
Sanford requested reinstatement on September 15, 1949, and `was informed
by the Respondent's letter of September 19 their records showed he had ceased:
to be an employee on June 9. For the reasons set forth in my discussion respect-
ing employee William C. McCollom, I shall recommend October 1, 1949, as the
date of discrimination upon which the payment of any loss accruing to San-
ford as a result of the Respondent's unlawful conduct shall commence.
7. Charles R. Trufant
Trufant went to work for the Respondent on March 9, 1948, and was a splut-
shift operator on a furnace at the time'of the layoff. This job involved reliev
ing a furnace operator one day, a furnace first helper the following day, an elec-.
trode puncher the third day, a furnace control board man the next day, and_
a roaster operator and furnace first helper the fifth day. He attended the first,
union meeting, passed out application cards, signed up members, wore a union,
button, and was at least, as admitted by the Respondent, moderately active in
behalf of the Union While repairing an office fan he noticed employee Early,
president of the Union, seated near Holtgrewe, Hutcheson, and other super-
visors Hutcheson told him later that day that he had stumbled into something,
that Early had been organizing for the Union. Holtgrewe who came in dur-
ing the conversation said to him that there was much confusion going on in the
plant, that there had to be a stopping point sonic place, that the Company was
paying men to work on their jobs and not let operation suffer and was going to
start bearing down On another occasion when Trufant allowed water to run
low in the tank but had taken care of it before he was spoken to, Holtgrewe told
him it appeared that was another example of a situation caused by all the con-
fusion going on in the plant and that Trufant did not have his mind on his
work. Hutcheson talked with Trufant about strikes that were going on in
the phosphate fields of central Florida and told him that the Respondent's plant
would be selected to be struck if the Union came in. Hutcheson said that
Trufant's attitude was going to make it hard for him to fit into an organization
of big business He was further told that the Respondent would close down
the plant before it would agree to seniority and that it would be easier for the
Respondent to fire him with a union,in the plant. He was laid off on June 9,
1949, and never recalled to work.
Of the 27 employees in the nodulizing department in which Trufant worked
there were 11 of less seniority than he, who were either not laid off, or were
rehired, or offered rehiring, or sought out to he rehired after the layoff. As
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has already been pointed out, there were also newly hired between July 1. 1949,
and January 1, 1950, a minimum number of 27 other employees, some of whom
at least, if the Respondent's policy of advancement through experience was
carried out, came to be employed on work similar to that Trufant had been do-
ing before June 9. The Respondent offered to reemploy Frierson, who had
less seniority than Trufant and had been doing the same work, but was not
willing to take Trufant back.
I disagree with the Respondent's assertion that the factor of seniority entered
into this refusal to rehire. The Respondent's contention that Trufant was
selected for layoff and not rehired because of carelessness, inefficiency, or lack
of responsibility, requires appraisal. The Respondent admits through the tes-
timony of Operations Foreman Hutcheson and Plant Foreman Odom that Trufant
bad not only been a satisfactory worker but an "excellent worker." He was
promoted right on up after March 1948. The Respondent offered evidence con-
cerning Trufant from its personnel file beginning March 5, 1949, the time that
union organizational activities which had been in suspense since April 1948, were
openly renewed and its membership campaign was actively reundertaken. These
file records referred to incidents occurring March 5, 30, April 6, 11, 21, and May
18 and 25, 1949. Taken in conjunction with Assistant Superintendent Holt-
grewe's statement to Trufant that there was not anyone in the plant who couldn't
be caught sometime or another doing something he shouldn't be doing, or making
a mistake for which he could be fired, and the coincidental timing of the com-
mencement and continuance of the keeping of the records of instances of alleged
,shortcomings with the commencement, development, and intensification of union
activities, the fact of the making of these records becomes significant. They
indicate that : On March 5 Trufant was cautioned not to allow the filter operator
to continue to wash phosphorous and sludge back into the back wash tank;
•on March 30 he broke a filter tube and was cautioned ; on April 6 he allowed
the roaster temperature to get too high and was cautioned ; on April 11 he was
talked to about watching little things on the job; on April 21 he allowed the
roaster condenser to get full of phosphorous ; on May 18 he was told to get
help in running the furnace offtake rod ; and on May 25 stated he did not know
exactly how to stop a tap hole.
Trufant had been working for the Respondent for 1 year (less 4 days) before
March 5, 1949. It is admitted that he was a satisfactory, indeed an "excellent
worker" during that period. Did he suddenly become an inefficient employee
,on or about the very day or week that the union campaign started, the last
of February or the first of March 1949? It is to be recalled that for some time
before the first union meeting at employee Webb's house on March 27 application
cards were in circulation and some had been signed, that Union Organizer
Sherer had been in communication with employees Webb, Early, Clark, and
Anderson early in the campaign before the first meeting, and that several of
the Respondent's supervisors were aware of union activity before they agreed
together to call employees in to be given the so-called "prepared talks." Is it
a mere coincidence that at the particular time these events were taking place
and the union activity became known to the Respondent, this excellent worker
became so careless and lacking in responsibility that, as contended by the
Respondent, any employer would be precluded from retaining him in its employ?
As testified to by former Plant Superintendent Crider and others, all operating
employees were green men when employed and it was a bard row the Respondent
hoed in training its men to perform their work. Mistakes and lack of technical
knowledge were to-be expected. It is difficult for me to believe that the incidents
in connection with Trufant's work which were recorded between March 5 and
VICTOR CHEMICAL WORKS 1041
May 18, 1949, represent such an unusual degree of carelessness or disregard of
responsibility among the group of green employees, as to merit the especial
emphasis they were given, to set Trufant prominently apart for mark among
his fellow workers as inefficient, or to warrant so severe a penalty as the per-
manent loss of his job
I do not think that Trufant changed virtually overnight from an efficient em-
ployee to an unsatisfactory worker or that this was the real reason for the
Respondent having let him go and failing to rehire him. I feel that Trufant only
became insupportable to his employer when the union campaign in which he
was prominent was reactivated, and that his subsequent complete separation
was more directed at his unionism than at his alleged peculiarities, carelessness,
or lack of responsibility. Cf Agwilines. Inc. v. N L. R. B., 87 F. 2d 146 (C. A 5).
I consider that the incidents of carelessness cited were recorded in conformity
with Holtgrewe's statement that anyone could be caught in a mistake for which
he could be fired, used as a pretext for separating Trufant, and that the real
reasons for the refusal to reemploy were Trufant's membership in, sympathy
for. and acti\ ities in behalf of the Union
I find, for reasons hereinbefore set forth, that Trufant was not discriminatorily
laid off but was laid off for justifiable economic reasons. However, I do con-
clude and find that the Respondent's refusal to rehire him was discriminatory
and for the purpose of discouraging union activity and membership and that
such conduct was of a character which interfered with, restrained, and coerced
the Respondent's employees in the exercise of the rights guaranteed in Section
7 of the Act and thereby violated Section, 8 (a) (1) and (3) of the Act.
I shall recommend October 15, 1949, as the date of discrimination upon which
the payment of any loss accruing to Trufant as a result of the Respondent's un-
lawful conduct shall commence. It does not appear that Trufant demanded
reemployment. I have previously found that by October 1, 1949, the economic
conditions which I consider justified the June 9 layoff had ceased to exist. Busi-
ness had markedly improved by that date, there were 16 more production em-
ployees on the payroll than on July 1, and more were hired after October 1. By
October 15 the Respondent had ample opportunity to offer back to Trufant his
position which it had already offered to and which had been rejected by Frierson.
8. Bronzell Watford
Watford went to work for the Respondent on January 23, 1948, as a common
laborer and was advanced to raw material operator unloading material from
cars, running it to the feed end of the kiln, thence up to the silos, and then to
and charging it into the furnace He joined the Union in 1949, attended the
first and three or four subsequent meetings, solicited employee Hendley, who
did not join the Union, to become a member Plant Foreman O'Kelley asked
him where his union button was and how he felt about the Union. Three days
before he was laid off Operations Foreman Hendrickson told him he had been
selected on a basis of seniority as one of the group to be temporarily laid off.
About 3 months later and again on July 1. 1950, lie applied, without success, for
reemployment. Watford was prone to fall asleep on the job, to be called home
more frequently than other employees, and was considered to be a poor worker.
In my opinion the General Counsel has not sustained the burden of proving by
the weight of the substantial ci edible evidence that the Respondent's conduct in
laying off and failing to reinstate Bronzell Watford was discriminatory. There-
fore I shall recommend dismissal of that portion of the complaint that relates
to him. In arriving at this opinion I am not unmindful of the general attitude
943 7 32-51-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of opposition to union activities which the Respondent had manifested. But to
find that an employer has discriminatorily treated an individual employee who
is a member of a union, simply on the basis that it is opposed to unionization
and that it has been shown to have discriminatorily laid off or refused to rehire
other employees, would be to base an inference upon an inference.
D. The alleged discriminatory constructive discharge of Walter H. Early
The facts relating to, and the character of, the alleged discrimination against
Early differ materially from those relating to the six employees referred to in
the immediately foregoing subparagraphs 3-8. He was employed at first as a
maintenance mechanic and later became an electrician's helper under Chief Elec-
trician John H. Brooks, from July 28, 1947, to August 30, 1949, on which date it
is asserted he was forced to quit. His experience in electrical work dates back
to 1937. Operations Foreman Hutcheson esteemed Early to be a good worker,
very efficient, very cooperative. He requested the union organizer's assistance
in organizing the plant and an organizational meeting was held at the home of
employee Albert Webb about 4 to 6 weeks later. He was elected president of the
Union, known throughout the plant to occupy that position, and presided over
biweekly meetings held at Webb's house and later at Odd Fellows Hall in Tarpon
Sr rings Early'.,, work involx ed his going to many parts of the Respondent's plant
and he frequently spoke to employees concerning union matters-while traveling
about. About May 6, 1949, while making inspections and repairs he reminded
some'emplovees including Tillman, Watford, and Fox that a union meeting was
to be held that evening He noticed that Personnel Director Harry G. Paul was
following him and that he was close by when he requested Fox to attend the
meeting and ask others to attend Then his supervisor, Chief Electrician John
H Brooks ordered him to the electrical shop where he told him not to talk to any-
body, to stay there for the rest of the day, and not leave without his permission.
Brooks told him company officials were breathing down Brooks' collar because
Early had been talking to the men about the Union during his inspections of the
plant. Brooks asked other employ ees to do him a favor and steer clear of Early.
From that time on Brooks accompanied him on a majority of the jobs he did in
the plant outside the machine shop. Shortly after May 6 Master Mechanic
Schneider called him into the office and after talking about some trouble that had
been occurring in connection with a crane said, "Early, what about the Union?"
Upon Early's stating he felt one was needed, Schneider asked him why he
felt so After Early gave his reasons Schneider said, "You can't get a
union in here We won't have it " At a union meeting that night Early related
this con% ersation and stated he was going to file charges against Schneider.
The following working day he was called into Assistant Superintendent Holt-
grewe's office and was talked to by or in the presence of Holtgrewe, Yard Foreman
Croft, Operations Foreman Hutcheson, and Schneider. Holtgrewe said he had
heard Early had filed unfair labor charges against Schneider and that they
were serious Early stated he did not care to discuss that subject and referred
Holtgrewe to the union organizer Then Holtgrewe said that the mistakes
Early had made in the past had been taken into consideration but the mistakes
made in the future wouldn't be taken into consideration Holtgrewe asked
him what advantages he thought unionization would provide and stated that a
union would not get him anything. About 3 weeks later in Schneider's office
in the presence of Operations Foreman Hendrickson, Hutcheson, and Schneider,
Plant Superintendent Crider, who testified he has and continues to consider
Early "a pretty good boy" asked Early to quit if he couldn't get along with the
company and referred to the fact that Early was trying to organize the plant,
VICTOR CHEMICAL WORKS 1043
and either Hendrickson or Schneider said, "Early, why don't you change horses
in the middle of the stream, and work for the Company as hard as you have
worked for the Union" and that Early would be taken care of if he would change
over and work for the Company as hard as he had worked for the Union. About
May 22, 1949, Schneider inquired where Early had been the previous day and
upon being informed be had been in the office of a Board field examiner, Schneider
stated, "Well, you needn't think that you will get a union in here" and "We
will shut the plant down." About once a week following May 6, Brooks told
Early not to talk to anyone about the Union, that pressure was being put on him,
that it would make it hard for him if Early was caught talking to anybody, and
that if he wanted to organize the plant he should not let the Company's officials
see him going around talking to anybody.
About June 12 or 13, 1949, after the layoff of 19 employees on June 9, Schneider
told Early he had been on the winning side for quite a while, that his position
had been reversed, and now he was on the losing side. Early replied that he still
thought there were enough men for the Union to win the election.
In the latter part of July, Early had a verbal altercation with Schneider
respecting work on a welding receptacle during the course of which altercation
Schneider told Early if he felt the way he did concerning a difference of belief
over the frequency of the receptacles short-circuiting he should go home. Later
the same day he was called before Crider, Holtgrewe, and Schneider after Brooks
had informed him he was going to be fired. At the time it was noticeable that
Early was in a highly nervous state. Crider told him he was not yet fired and
brought up the incident of the quarrel with Schneider. As Personnel Manager
Paul was present with pencil and paper, Early, who did not wish to have state-
ments reduced to writing, requested permission to talk alone with Schneider.
Thereupon the 2 men went out in the hall, Early apologized and Schneider said
"Early, if you had left the damned Union alone this would not have happened."
About 4 days later Crider discussed his career and the history of the Company
with Early and told him to have faith in and stick with the Company and that .
`there probably would be a better job in store for him; that if a union came in
it would prove to the Company that Crider was not doing his job in keeping
the employees satisfied. Shortly before the election of August 22 Early was
ordered to do nonelectrical work repairing a float on a water tank, following
which Crider told him if he had changed over to the Company his position
as an electrician would be different and that if the Union came in he would be
fired. After the election he was ordered to do manual labor, loading pipes.
This work took about 30 minutes. That afternoon Hutcheson said, "Early, why
don't you go down now and quit. None of us don't like you. We can fire you.
You organized the plant. Early, you threatened employees, you took money
and bought votes." " A couple of days later a hurricane did considerable elec-
trical damage. Early had been out of town over the week end and returned
to the job Monday, August 29. Brooks had been working on Sunday with another
electrician, and on Monday or Tuesday sent Early to work drying out and
repairing 1 crusher motor and 5 starter motors at the slag plant. It required
3 hours to repair 1 starter motor. At 11 o'clock Brooks ordered him to complete
the job on the crusher motor and the 4 other starter motors by noon. Early
worked until noon, went back to the slag plant after lunch, found that he couldn't
finish the repairs in the alloted time, and then notified the personnel manager
" Hendrickson testified he had heard Early had threatened employees but never said
it to,Early. Based upon my observation of Early as a witness and of the witnesses
who denied making some of the statements he attributed to them, I believe his testimony
which I conclude was beyond his probable powers of contrivance , and reject the
contradictory evidence.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had been forced to quit. He applied for reinstatement on September 8
and received a reply from the Company dated September 14, stating its investi-
gation indicated he had quit on his own accord. Two further letters dated
November 21, 1949, and January 17, 1950, requesting reemployment were an-
swered by the Respondent on January 31, 1950, in a letter asserting nothing
could be added to its letter of September 14, 1949.
On the weight of all the evidence, particularly that relating to Early, whose
testimony I credit insofar as it is in conflict with the testimony of some of the
Respondent's supervisory employees, it appears clear that the Respondent was
opposed to the establishment of the Union at its Tarpon Springs plant, and was
especially opposed to Early, whom it had regarded as a valuable employee before
the advent of the Union, but whose presidency and leadership it considered a key
factor in the Union's organizational activities ; it was fearful and resentful of
Early's efforts and when he declined to accept the Respondent's blandishments
and to discontinue his endeavors, it undertook to isolate him from contact with
employees, pressed him with work incapable of performance within the time
limit set, and in general, followed a course of conduct of discrimination against
him in the hope he would resign, an expectation that was realized His known
leadership in and zealous espousal of the Union, and the Company's coercive
opposition to it, together with the explicit statement "Why don't now you go
down and quit," show that his union activities formed a basis for the discrimin-
ation against him I conclude that Early was discriminatorily discharged, and
denied reinstatement by the Respondent because of his union activity, that by
such conduct the Respondent interfered with the hire and tenure of employment
of its employees and coerced them in the exercise of rights guaranteed by Section
7 of the Act, thereby violating Section 8 (a) (1^ and (3) of the Act. Of. Palm
Beach Broadcasting Corp., 63 NLRB 597, 613, enfd. 155 F. 2d 805 (C. A 5).
E. Other alleged coci cave conduct
In order to treat adequately this aspect of the case some repetition of facts
is indulged.
Supervisory employees of the Respondent testified and I find that they asked
employees what the Union could give them that the Company couldn't, told them
that the Company could give them as much as the Union could, to go to union
meetings with an open mind, asked employees what the sales talk of union adher-
ents was, talked to employees about union buttons they were wearing, called
all operating employees singly or in pairs off the job into meetings, usually
attended by more than two supervisors, where they were told about the history
and policies of the Company, the benefits the Company had given employees, the
Company's side of the story with respect to unionization," and talked to them
about the confusion that was going on in the plant over the issue of whether
employees would or would not join the Union, the strikes that were taking place
in the phosphorous industry in the central part of Florida, the fact that straight
seniority was not practicable, and the belief that the Respondent would not sign
a straight seniority contract.
There is also evidence and I find that supervisory employees asked an em-
ployee if he or anyone else had been paid for his vote or threatened to vote for
the Union, inquired of an employee whether anyone was putting pressure on
him to join a Union, told an employee that the Company would not sign a con-
16 Assistant Superintendent Holtgrewe , who was present at most of these meetings,
testified he wouldn 't know whether or not the men were asked concerning what complaints
they might have which would cause a union to be active in the plant at that time.
VICTOR CHEMICAL WORKS 1045
tract containing a straight seniority clause, and walked up to a group of about
10 employees being addressed by the Union's secretary and treasurer, asked
what was going on. and expressed a desire to hear the things the secretary and
treasurer had to say about the Union.
The record also contains testimony of certain employees who are not named
in the complaint This testimony is. in part, in conflict with testimony given
by certain of the Respondent's supervisory employees Where such conflict
exists I credit the testimony of the rank-and-file employees whose demeanor I
observed and who I consider more disinterested than the supervisors. From
this evidence it appears and I find that employee Martinez was before June 9,
1949, asked by Hendrickson, who said the button made no difference to him,
why he wanted to wear it union button and told by either Holtgrewe or Hendrick-
son that if the Union came in. there would be a strike and the plant would
close down; that employee Davis, who had lost an aim at a point below the elbow,
was told by Schneider upon noticing Davis' union button that he saw he had
joined the Union, asked what he expected to gain, told that the Company wouldn't
sign a contract providing seniority, and that if the Union did come in there would
be a strike and later asked by Schneider to put in a good word for the Company
to keep the Union out and informed that if lie didn't change his attitude he could
very easily be let go and a helper with two hands retained; that employee Kelly
was asked by Schneider, who told Kelly he didn't want him to join the Union
if he didn't want to, whether anyone had asked him to join the Union and that
if he wei e approached lie wanted Kelly to inform him; that employee Fowler
was asked by Moloney if he was for the Union ; that employee Pruett was told
by Schneider it appeared that Pruett had let him down as lie had a union button
on his shirt and asked what he expected to gain ; that employee Sigmon was told
by Holtgrewe at a meeting in his office attended by five other supervisors and
the personnel manager, they wanted to talk to him about the Union, that when
one met force they fought it with force, that the Company could stand a strike as
long as the men could stand it, that the Company would not sign a contract
containing a seniority provision, and after the election was told he was doing
too much talking and engaging in outside activities, by Hutcheson who made no
comment when Sigmen asked him if he meant union activities; that employee
Hayes, Jr, and a group of laborers were told he was not allowed to talk against
the Union, by Holtgrewe who had all of the group speak individually just how
they felt about it, was told individually by Hutcheson the Company lost the
election by just a few votes, asked if anyone had offered him any money for
his vote, told that the Company thought it had all the colored votes, that em-
ployee Clare told him he had voted for the Company but he knew that Clare as
well as employee Roberts, had voted Union ; that employee Roberts was asked
by Croft which way he had voted ; that employee Williams was asked by Holt-
grewe if he had paid union dues and told if the employees got too tough he,
Holtgrewe, and other supervisors would fight back, told by Hendrickson
seniority was a dead issue and asked by Schneider on the day before the union
election if he was going to let Schneider down and told he was being depended
upon not to ; that employee Tillman was asked by Moloney whether he was for
or against the Union, if he attended union meetings, whether he would find out
what was going on, where meetings were being held and let Moloney know, asked
how employees Hatton and Trufant felt about the Union and what was their
sales talk, asked by Holtgrewe, who checked the names on a list, who had at-
tended a union meeting ; that employee Hudson was told by Holtgrewe when he
came to vote he could put the X in the right place, was asked by Moloney for
his union button: and that employee Bunnell was asked by Schneider how he felt
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the Union, told that the Union was tying the Company's hands so it
couldn't do for its employees the things it wanted to and that the Respondent
would never sign a contract containing a seniority clause.
To the extent that the Respondent's, conduct was confined to an expression
of its desires, appeals to reasons, or noncoercive prophesying as to the result
of organization, I do not find that any violation of the Act occurred. However,
the conversations with employees were not confined to such limits. Such in-
terrogation as Schneider's of Fox as to how he felt about the subject of union-
ization ; of Kelly, if anyone was pressuring him to join the Union ; of McCol-
lom, as to why he thought a union was needed; of Early, about the Union and
why he did not change horses and be taken care of by working for the Com-
pany as hard as he had worked for the Union ; of Davis, to whom Schneider
stated he could be very easily let go, as to why he did not put in a good word
for the Company to keep the Union out ; of Kelly, to whom he stated he wanted
to be informed if Kelly were solicited, if he had been approached by the Union ;
and of Pruett, as to why he had let Schneider down and what he expected to
gain ; as Hendrickson's of McCollom, as to what sort of a meeting he was having
at shift time, of Martinez, as to why he wanted to wear a union button ; as
Holtgrewe's of Sanford ; as to why he wanted to be a union member, of a group
of which Hayes, Jr., was a member , concerning just how they felt about the
Union; as O'Kelley's of Watford, as to where his union button was and how
he felt about the Union ; as Hutcheson's of Early, in stating he organized the
plant and could be fired, as to why he did not quit, of Hayes, Jr, if he had been
offered money for his vote ; as Moloney's of Fowler, if he were for the Union,
of Tillman, whether he was for or against the Union, and attended union meet-
ings, and of Bunnell, if he would give him his union button ; and as Croft's of
Roberts, as to which way he had voted ; whether accompanied by the direct
question "Are you a member of the Union" or with more subtle inquiry have
consistently been held to violate the Act. Standard-Coosa-Thatcher Company,
85 NLRB 1358.
When placed against a background of such statements as the plant would be
struck should the Union prevail, the Company could stand a strike as long as
the men could stand it, the Respondent would never sign a contract containing
a seniority provision and would close down the plant first, that the confusion
going on in the plant during the election campaign would have to be stopped,
that there was not anyone in the plant who couldn't be caught sometime or
other making a mistake for which he could be fired, that the Respondent would
not have a union in the plant, that a union would not get an employee anything,
that the union president needn't think he would get a union in , that the plant
would shut down, that when one met force they fought it with force, that the
Union would tie the Company's hands so that it couldn't do for employees the
things it wanted to, that unionism was not American, and the general tenor
of the "prepared talks" the supervisors decided to give employees who were con-
fronted by an assemblage of officials during the election campaign,17 the pur-
pose and effect of these interrogations becomes plain. Even the meaning of
the Golden Rule which was stressed at these meetings was given an isoclinic
import. is
17 Holtgrewe when he ended up these, talks would tell the employees there was a union
election coming up.
18 Employee Bunnell testified he said to Master Mechanic Schneider, "I might not want
to be treated as he thought he would want to be treated."
VICTOR CHEMICAL WORKS 1047
It is a reasonable inference to be drawn and I find, from what the super-
visors said and did, that their words and actions contained threats of reprisal
and promises of benefit.
The answer to any contention that the supervisors' statements were guaran-
teed by the free speech amendment is found in a statement in N. L. R. B. v.
Continental Oil Co., 159 F. 2d 326, 330 (C. A. 10), "So long as pursuasion does not
amount to coercion it is within the guaranty, but no one has the constitutional
right to interfere with, restrain or coerce another in the exercise of the same
right. The use of economic power over men and their jobs to influence their
action is more than the exercise of free speech. Mere suggestions, when made
by one who holds the power of economic coercion in a setting conducive to the
exercise of that power, may have the unwarranted effect of exerting a coercive
influence to which freedom of speech does not extend. N. L. R. B. v. Link-Belt
Co., 311 U. S. 584, 598."
In summary I conclude and find that the Respondent by interrogating its
employees concerning their attitude toward and their interest and activities
in behalf of the Union, by warning its employees against union activities and
promising its employees benefits for refraining from union activities, and there-
after laying them off and refusing to reinstate them interfered with and co-
erced its employees in the exercise of the rights guaranteed by Section 7 of the
Act and thereby violated Section 8 (a) (1) of the Act.
I do not find, as contended by the General Counsel, that the Respondent vi-
olated the Act by keeping under surveillance the union meetings and activities
of its employees. The evidence that the driving by Union President Early's
house by supervisors falls short of proving this allegation. A plausible ex-
planation, which I credit, is that these supervisors sometimes went past the
house on the way to softball games that were played in the vicinity and en
route to Clearwater by the shortest road from Tarpon Springs and that there
were no means of driving around the apartment house in which Early lived.
There is some evidence that Supervisors Brooks and Paul followed Early in the
plant. I have already found that efforts were made to insulate Early from
contact with other employees and although I feel that this conduct was related
to events which ultimately precipitated his constructive discharge, I do not
believe under the circumstances it constituted such a degree of espionage as is
intended to be proscribed by the Act. Other random statements by supervisors
that they knew what was going on in the form of union activity and the hap-
pening along of supervisors when employees were discussing union matters, do
not strike me as being of sufficient probative value to warrant a finding that the
Respondent kept under surveillance the union meetings and activities of its
employees. Accordingly I shall recommend that the portion of the complaint
relating to surveillance be dismissed. Neither do I find, as contended by the
General Counsel, that the petition for a new election was sponsored by the
Respondent The evidence goes no further than to create a suspicion that em-
ployee Register was inspired by the Company to prepare and secure signatures
on the petition. This is not enough.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section III, above, occurring
In connection with its operations described in Section I, above , have a close,
intimate , and substantial relation to trade, traffic , and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire and
tenure of employement of Joseph H. Fox, William C. McCollom, Vaughn B. San-
ford, Charles R. Trufant, and Walter H. Early it will be recommended that the
Respondent offer to each immediate and full reinstatement to his former or
substantially equivalent position 10 and make each whole for any loss of pay
he may have suffered as a result of the Respondent's discrimination against
him by payment to each of a sum of money equal to that which he would have
earned as wages from the date of discrimination 20 to the date of offer of rein-
statement. Loss of pay shall be computed on the basis of each separate cal-
endar quarter or portion thereof during the period from Respondent's discrim-
inatory action to the date of a proper offer of reinstatement. The quarterly
periods, herein called quarters, shall begin with the first day of January, April
July, and October. Loss of pay shall be determined by deducting from a sum
equal to that which each would normally have earned for each such quarter or
portion thereof, his net earnings, if any, in other employement during that
period. Earnings in one particular quarter shall have no effect upon the
back-pay liability for any other quarter.' In accordance with the Woolworth
decision, it will be recommended that Respondent, upon reasonable request,
make available to the Board and its agents all records pertinent to an analysis
of the amounts due as back pay.
The unfair. labor practices found including those concerned with threats and
interrogation, reveal on the part of Respondent such a fundamental antipathy
to the objectives of the Act as to justify an inference that the commission of
other unfair labor practices may, be anticipated The preventive purposes of
the Act may be frustrated unless Respondent is required to take some affirm-
ative action to dispel the threat. It will be recommended, therefore, that
Respondent cease and desist from in any manner interfering with, restraining,
or coercing its employees in the exercise of rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following :
CONCLusIONs OF LAW
1. International Chemical Workers Union , A F L., is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Joseph H Fox , William 0 McCollom , Vaughn B. Sanford , Charles R . Trufant,
and Walter H. Early , thereby discouraging membership in and activities on
behalf of a labor organization , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 ( a) (1) and (3) of
the Act.
3. By interfering with, restraining , and coercing its employees in the
exercise of the rights guaranteed them in Section 7 of the Act , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act.
19 The Chase National Bank of The City of New York, San Juan, Puerto Rico Branch,
65 NLRB 827.
20 In the case of Fox, October 4, 1949; of McCollom, October 1, 1949; of Sanford,
October 1, 1949 ; of Trufant, October 15, 1949 ; of Early, August 30, 1949.
21 F. W. Woolworth Company, 90 NLRB 289.
L. RONNEY & SONS FURNITURE MANUFACTURING CO. 1049
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices within the
meaning of Section 8 (a) (1) or (3) of the Act by discharging and thereafter
failing and refusing to reinstate William C Murphy and Bronzell Watford.
6. The Respondent did not violate Section 8 (a) (1) of the Act by keeping
under surveillance the union meetings and activities of its employees.
[Recommended Order omitted from publication in this volume.]
L. RONNEY & SONS FURNITURE MANUFACTURING CO., A CO-PARTNER-
SHIP CONSISTING of LEWIS RONNEY, LILLIAN RONNEY, SAM RONNEY
AND MILTON RONNEY and SUSIE CLINTON, LEWIS HARRISON,
FLORENCE JOHNSON, HELEN MONTGOMERY, ZULA PIPKIN, MIKE
SENDEJAS, LUCILLE SIMS, AND HAROLD J. SUSHAN and Fuu i'ruRE
WORKERS UNION, LOCAL No. 3161 OF THE UNITED BROTHERHOOD OF
CARPENTERS & JOINERS OF AMERICA, AFL, PARTY TO THE CONTRACT.
Case No. 21-CA-403. March 30,1951
Decision and Order
On June 19, 1950, Trial Examiner Thomas S. Wilson issued his
Tntermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending 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 Furniture Workers Union, Local No. 3161 of the United Brother-
hood of Carpenters & Joiners of America, AFL, herein called
Local 3161, filed exceptions to the Intermediate Report and
supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Houston and
Reynolds].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudlcal error was committed?
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the exceptions and
modifications set forth below.
' We have carefully considered the entire record in this case, and find that the allegations
of the Respondent and of Local 3161 that the Trial Examiner was biased are wholly
without merit.
93 NLRB No. 180.