American Potash & Chemical Corp.

National Labor Relations Board - Board Decisions

Jul 28, 1937

3 N.L.R.B. 140 (N.L.R.B. 1937)

In the Matter of AMERICAN POTASH & CHEMICAL CORPORATION and
BoRAx & POTASH WoRKFm s' UNION No. 20181
Case No. C-107.-Decided July 28, 1937
Chemical Industry-Company-Dominated Union: domination and interfer-
ence with formation and administration ; sponsorship and support ; discrimina-
tion in favor of ; disestablished as agency for collective bargaining-Discrimi-
nation: discharges for union activity ; discharges for attempts to remove
company influence from company -dominated union ; demotion-Reinstatement
Ordered-Back Pay: awarded.
Mr. Bertram Edises for the Board.
Gibson, Dunn & Crutcher, by Mr. J. Stuart Neary and Mr. Henry
B. Ely, of Los Angeles, Cal., for the respondent.
Mr. Howard Lichtensteini, of counsel to the Board.
DECISION
STATEMENT OF CASE
Charges and amended charges having been duly filed by the Borax
and Potash Workers' Union No. 20181, herein called the Union,,-, the
National Labor Relations Board, herein called the Board, by Towne
Nylander, Regional Director for the Twenty-first Region (Los
Angeles, California), issued and duly served its complaint dated
April 24, 1936, against the American Potash and Chemical Cor-
poration, Trona, California, the respondent herein, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8, subdivi-
sions (1), (2), and (3), and Section 2, subdivisions (6) and (7) of
the National Labor Relations Act, 49 stat. 449, herein called the Act,
and that in April 1936, the respondent discharged, and has at all
times since that date refused to reinstate Earl Wright, H. S. Hardie,
J. C. McConnahey, R. C. Whitehurst, and Carl Campbell, employees
of the respondent, because they joined the Union and engaged in con-
certed activities with other employees of the respondent, for the
purpose of collective bargaining and other mutual aid and pro-
tection.2
' The pleadings incorrectly designated the Union as Borax & Potash Workers' Union
Local No. 20181.
H. S. Hardie is referred to as Henry Simpson Hardie , J. C. McConnahey as J. C.
McConahey , and R . C. Whitehurst as Richard C. Whiteburst in the record.
s At the conclusion of the Board 's case, the Trial Examiner granted the motion made
by counsel for the Board to strike the name of Carl Campbell from the complaint.
140
DECISIONS AND ORDERS 141
On May 1, 1936, the respondent filed its answer to the complaint
denying that its operations affect interstate commerce within the
meaning of the Act and denying that it had engaged in or was
engaging in the alleged unfair labor practices.s In addition, the
respondent filed a motion to dismiss the complaint for the reasons
that the Act is unconstitutional and that the Board has no jurisdic-
tion over the respondent's business or activities.
Pursuant to notice, a hearing was held in Randsburg, California,
from May 4, through May 7, 1936, before Carey McWilliams, the
Trial Examiner duly designated by the Board. On May 14, 1936,
the hearing was resumed in Los Angeles, California, and closed on
June 3, 1936. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
was afforded to all parties. Both at the opening and close of the
hearing, the respondent renewed its motion to dismiss, decision there-
on being reserved by the Trial Examiner.
On July 6, 1936, the Trial Examiner filed his Intermediate Report
in which he found that the respondent had engaged in and was
engaging in the unfair labor practices alleged in the complaint, but
recommended that the complaint be dismissed for the reason that the
,acts committed by the respondent are not unfair labor practices af-
fb,cting commerce within the meaning of Section 2, subdivisions (6)
and (7) of the Act. Thereafter, both the respondent and the Union
duly filed exceptions to the Intermediate Report.
On September 19, 1936, the Union filed supplemental charges on
the basis of which the Board issued and duly served its second
amended and supplementary complaint, dated October 2,1936, against
the respondent, incorporating the allegations contained in its com-
plaint dated April 24, 1936, and further alleging that the respond-
ent, during •the month of August 1936, discharged and has at all
times since that date refused to reinstate H. O. Goddard, R. O.
Lamson, E. M. Ball, J. B. Kennard, and C. Pratt, and demoted and
has since refused to rescind the demotion of J. L. Ivers, all employees
of the respondent, because they joined the Union and engaged in
concerted activities with other employees of the respondent for the
purpose of collective bargaining and other mutual aid and protec-
tion.4 In addition, the second amended and supplementary com-
plaint alleged that during the month of August 1936, the respondent
also discharged and has at all times since that date refused to rein-
state O. S. Kunkel, L. A. Sherriff, H. Webb, George Cline, H. B.
Winslow, E. Pulcifer, and R. Wilgus, employees of the respondent
$ Thereafter the respondent filed an amended answer substantially the same as its
original answer.
It. 0. Lamson is referred to as Robert O. Lamson , E. M. Ball as Elbert Marshall Ball.
and C. Pratt as Leroy Pratt in the record.
142 NATIONAL LABOR RELATIONS BOARD
and officers or members of the Allied Chemical Workers' Association,
herein called the A. C. W. A., for the reason that they formed and
became members of a committee to protest, and did protest, to the
respondent against the discharges of R. O. Lamson and H. O.
Goddard, and the demotion of J. L. Ivers, and for the additional
reason that they attempted to free the A. C. W. A. from the domina-
tion, interference, and control of the respondent.5
On October 9, 1936, the Union filed additional charges against the
respondent, upon which the Board, by its Regional Director for the
Twenty-first Region, issued and served its complaint dated October
9, 1936, against the respondent, alleging that the respondent, during
the month of September 1936, discharged and has at all times since
that date refused to reinstate F. F. Matlock, Otto Duval, Charles
Winton, Fred Balch, and R. K. Rogers, employees of the respondent,
because they joined the Union and engaged in concerted activities
with other employees of the respondent for the purpose of collective
bargaining and other mutual aid and protection; 5 that these acts
constitute unfair labor practices within the meaning of Section 8,
subdivisions (1) and (3), and Section 2, subdivisions (6) and (7)
of the Act.
Thereafter, the respondent filed answers to the second amended
and supplementary complaint, and to the complaint dated October 9,
1936, denying the allegations contained therein. In addition, it
filed a motion to dismiss, based upon the same grounds as those
contained in its original motion of May 1, 1936.
Pursuant to the notices contained in these latter complaints, a
hearing was held in Los Angeles, California, commencing on October
15, 1936, before Benedict Wolf, the Trial Examiner duly designated
by the Board. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
raised in these latter complaints was afforded to all parties. At the
close of the hearing the respondent made various motions to dismiss
the complaints, such motions being based upon the constitutional
invalidity of the Act, lack of jurisdiction, and the failure of proof
to controvert the findings contained in the Intermediate Report of
July 6, 1936. The Trial Examiner denied these motions and granted
the motion of counsel for the Board to permit the previous record of
'At the conclusion of the second bearing, the Trial Examiner granted the motion of
counsel for the Board to dismiss the complaint , without prejudice , with respect to the
discharge of H. B . Winslow. 0. S. Kunkel is referred to as Owen Scott Kunkel, L. A.
Sherriff as Lawrence A. Sherriff , H. Webb as Harold Carl Webb, George Cline as George
E. Cline, E. Pulcifer as Elmer Pulcifer, and R. Wilgus as Russel V. Wilgus in the record.
It should be noted that the A. C. W. A. was invited to be represented prior to the com-
mencement of any proceedings In this case , but it refused to be represented by counsel
or otherwise to participate.
"At the conclusion of the second hearing, the Trial Examiner granted the motion of
counsel for the Board to dismiss the complaint , without prejudice , with respect to the
discharge of Charles Winton and R. K. Rogers.
F. F. Matlock is referred to as Franklin F. Matlock in the record.
DECISIONS AND ORDERS 143
testimony taken pursuant to the complaint dated April 24, 1936, to
be incorporated into the record of testimony taken pursuant to the
complaints dated October 2, 1936, and October 9, 1936, in so far as the
previous record describes the business activities of the respondent.
By order of the Board, dated October 20, 1936, all the proceedings
were consolidated and transferred to the Board for the purposes of
further consideration, in accordance with Article II, Section 37 of
National Labor Relations Board Rules and Regulations-Series 1,
as amended.
We have reviewed all the rulings made by the Trial Examiners on
motions, objections, and other matters, and find that no prejudicial
errors were committed. The rulings are hereby affirmed. We have
fully considered the exceptions to the Intermediate Report, filed both
by the respondent and the Union, and we find no merit in the re-
spondent's exceptions. For the reasons hereinafter set forth, we -
sustain the Union's exception to that part of the Intermediate Re-
port which finds that the unfair labor practices committed by the
respondent are not unfair labor practices affecting commerce within
the meaning of Section 2, subdivisions (6) and (7) of the Act.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. RESPONDENT AND ITS BUSINESS
The respondent was incorporated in the State of Delaware on
June 4;. 1926, and is authorized to issue 1,000 ,000 shares of no par
value stock , of which 528 ,390 shares were outstanding and owned
by 176 stockholders in 1934. In the same year, the total assets of the
corporation ' amounted to $15,564,048.
The respondent , through stock ownership , controls the Trona
Railway Company , a standard gauge railroad extending a distance
of 30.25 miles from Trona to Searles , California , where it connects
with the Southern Pacific Lines.7 Its traffic consists almost entirely
of the respondent's products , all of which are shipped over this rail-
road. In 1934, its equipment consisted of two locomotives and one
passenger coach, and it utilized the services of 37 employees. The
Trona Railroad is subject to regulation by the California Railway
Commission , and its tariff schedules come within the jurisdiction of
the Interstate Commerce Commission.
The respondent is engaged in the manufacture of potash, boric
acid, borax, soda ash, and sodium sulphate from brine extracted
In 1935, 1 , 500 shares , valued at $ 150,000, were outstanding , of which the respondent
held 1 ,497 shares , and W E. Burke , the respondent ' s manager, 0 M. Simpson , the re-
spondent's assistant manager , and E. A. Donohoe , the respondent 's property and claim
agent, held one share apiece. Board's Exhibits Nos. 28-P, 29 . ( Unless otherwise indi-
cated , references are to exhibits introduced at the first hearing )
144 NATIONAL LABOR RELATIONS BOARD
from Searles Lake. The process consists in the concentration of the
lake brine, the cooling of the concentrated liquor, and the retreat-
ment of salts eliminated during evaporation. The brine is pumped
from wells drilled through the porous salt deposit covering the bed
of the lake.
The respondent's plant is situated in Trona, California, on the
northwest edge of Searles Lake, 185 miles from Los Angeles. Trona,
an unincorporated area, is a company town, the land, houses, stores,
and municipal facilities being owned by the respondent.8
Approximately 900 employes, including some 250 clerical and su-
pervisory employees, are engaged in the operation of the respondent's
plant, in the following departments : accounting, engineering and
maintenance, industrial relations, production, research and develop-
ment, supplies, traffic, and the Trona Railway. In addition, 25 em-
- ployees are distributed among the respondent's sales offices main-
tained in Los Angeles, New York City, Atlanta, Baltimore, and
Columbus, Ohio.
The respondent is one of the three major producers of potash
in the United States, and with the Pacific Coast Borax Company
is responsible for the greater portion of the world's supply of borax.9
In 1935, its total sales amounted to 281,942 short tons, of which
21,890 tons, or 7.8 per cent, were sold in California, and the remain-
ing 260,052 tons, or 92.2 per cent, were shipped to other States,
possessions of the United States, and foreign countries.'°
All of the ingredients of the respondent's products are obtained
from Searles Lake, with the exception of sulphuric acid, oleic acid,
sodium nitrate, and other gases and chemicals, which area used in
conjunction with the manufacturing processes and of which but
infinitesimal amounts remain in the completed products. Other
purchases made by the respondent consist of fuel oil, shipping sup-
plies, valves, pipes and fittings, and other plant equipment. In 1935,
8 Board's Exhibit No 15.
9 Board's Exhibits Nos. 30b ( b) and 30b (f).
10 It was stipulated in the record that the nature and extent of the respondent 's produc-
tion and sales activities have been substantially the same, proportionately , during the
year 1936 to the date of the hearing. The greater percentages of the sales of individual
products of the respondent were likewise made outside the State of California. Of a
total sale of 22,035 tons of chemical potash , two tons were sold within California and
the remainder in other States . Of a total sale of 147,884 tons of agricultural potash,
301 tons, or two-tenths of one per cent, were sold in California, 97,555 tons , or 66 per
cent, in other States, Hawaii , and Puerto Rico, and 50,028 tons, or 33.8 per cent, in
Canada and the Orient . Of a total sale of 67 ,795 tons of pyroborate products , 12,503
tons, or 18 4 per cent, were sold in California , 25,808 tons, or 38 .1 per cent , in other
States and Territories of the United States, and 29,484 tons , or 43.5 per cent, in
Canada, Europe , the Orient, and other foreign countries . Of a total sale of 19,543 tons
of soda ash , 9,002 tons , or 46 1 per cent, were sold in California , 1,861 tons , or nine and
one-half per cent, in other States of the Union and Hawaii, and 8 , 680 tons, or 44.4 per
cent , in Canada , Europe, South America, India, the Orient, and other foreign countries.
Of a total sale of 24,685 tons of salt cake , 82 tons, or three-tenths of one per cent, were
sold in California , 24,452 tons , or 99.1 per cent, in other States, and 151 tons, or six-
tenths of one per cent, in Europe.
DECISIONS AND ORDERS 145
the respondent's total purchases amounted to $1,302,000, of which
$159,000 represented purchases made outside the State of Cali-
fornia."
II. THE UNFAIR LABOR PRACTICES
A. The Union and its activities
Borax and Potash Workers' Union No. 20181, a labor organization,
was organized and became affiliated with the American Federation
of Labor on March 9, 1936. The respondent's practices directed to-
ward discouraging membership in the Union and limiting its activi-
ties are clearly revealed in the short history of the Union at Trona.
In December 1935, Whitehurst and Kennard, two of the respond-
ent's employees, later discharged, attended a meeting of the Borax
Workers Union Local No. 19820, active in the plant of the Pacific
Coast Borax Company at Kramer, California, 70 miles from Trona,
in order to investigate the activities of that local so that they would
know how to proceed in the organization of a union of the respond-
ent's employees. In February 1936, a committee consisting of
Whitehurst, Kennard, Goddard, Hardie, Pratt, Wright, McConahey,
and Markert, the latter six of whom were also later discharged by
thy. respondent, applied to the American Federation of Labor for a
certificate of affiliation, and commenced a membership campaign.
Calvin, a member of the Kramer local, and Hyans, an organizer
and label agent for the American Federation of Labor, came to
Trona in order to assist. Calvin, who sought permission from the
respondent, was permitted to remain in the town on the condition
that he keep out of the mill and bunkhouses. Meetings were held
at Burnham, an adjoining community, since the respondent had re-
fused to make available to the Union a meeting place in Trona.12
Organization activities were conducted openly, and there is some
testimony that union matters were discussed to a limited extent
during working hours.
The attitude of the respondent toward the Union soon became
manifest. In addition to his refusal to permit the Union to hold
meetings in Trona, Burke, the respondent's manager, refused Hyans
permission to place on the bulletin boards situated throughout the
plant and town excerpts from the National Labor Relations Act
dealing with the right of workers to self-organization. He also re-
fused Hyans permission to inform the employees that the respondent
had no objection to their joining the Union. There is some testi-
mony that union notices, posted on bulletin boards, were torn down,
and although it denied responsibility, we cannot believe that the
"See footnote 10, supra.
12 According to the record, Burke, the respondent 's manager , "just didn't want to tie up
the corporation property".
146 NATIONAL LABOR RELATIONS BOARD
respondent, if it had maintained a neutral attitude, could not have
prevented these acts of vandalism from occurring in its own domain.
The respondent's cloaked hostility culminated in the discharges
of March 1936. In August 1936, relying upon the Trial Examiner's
recommendations in his Intermediate Report of July 6, 1936, it threw
aside its veil of feigned indifference and dropped its subtle opposi-
tion to the Union, to engage in an open and wholesale purge of union
members and sympathizers. Any question that the respondent ac-
tively opposed union organization and warned its employees to re-
frain from becoming members is resolved in the light of the dis-
charges hereinafter discussed. Furthermore, contrast between its
treatment of the Union and the A. C. W. A. removes any doubt that
the respondent was determined to prevent any organization actually
representing its employees' interests from functioning at its plant,
and perhaps explains the fact that at no time did the number of
Union members exceed 95. After August 1936, and especially after
the discharges of Lamson and Goddard, and the demotion of Ivers,
which caused the vigorous protest from the A. C. W. A., hereinafter
discussed, union activity was driven completely under cover, and no
meetings were held for fear that members who attended would be
summarily discharged.
B. The American Chemical Workers' Association and its activities
As we stated in Matter of Pennsylvania Greyhound Lines, Inc.,
"While the National Labor Relations Act applies only to practices
occurring on or after July 5, 1935, in cases where such practices have
their origin in events prior to that date, knowledge of Ciat back-
ground of events may be vital to a proper evaluation of the present
practices." 13
The Allied Chemical Workers Association, an incorporated labor
organization of the respondent's employees, is representative of the
type of employer-sponsored union that arose under the National
Industrial Recovery Act. The A. C. W. A. was first discussed in
Trona in April 1934, after the adoption of the Chemical Code pro-
mulgated by the National Recovery Administration. The associa-
tion was initiated by Burke, the respondent's manager, who was
instrumental in forming a committee to draft the constitution after
conferences with Ryker, an employee of the accounting department,
Austin, a pipe-fitter foreman, and Simpson and Hood, the respond-
ent's assistant managers. During May and June, 1934, Ryker spent
considerable time during his working hours drafting the constitu-
tion. Late in June the first meeting was called by the committee
in the Patio, the respondent-owned moving picture theatre, and a
18 I. N. L. R. B. 1, at page 7.
DECISIONS AND ORDERS 147
committee of employees was appointed to consider the draft. There-
after, copies of the constitution, with petitions for its adoption,
were circulated throughout the plant, and early in July, employees
who had signed the petitions were invited to the meeting at which
the constitution was adopted.
The record unquestionably requires our characterization of the
A. C. W. A. as a creature of the respondent, organized to forestall
opposition to its labor policies by bestowing the illusion of inde-
pendence upon its employees. The constitution of the A. C. W. A.,
ostensibly providing machinery for the procurement of collective
benefits for members, contained the germ for the indirect and subtle
domination which the respondent exercised over A. C. W. A. activ-
ities. Under the constitution, membership was limited to all non-
staff employees of the respondent, thus making eligible foremen, sub-
foremen, minor officers, and all other supervisory employees not di-
rectly connected with the office of the manager. It is not therefore
surprising that such employees were elected to the more important
offices of the A. C. W. A. and exerted an influence in the organiza-
tion entirely out of proportion to their numbers. C. C. Browne,
salvage foreman, was the first president; James Branek, a pipe-
fitter boss whose subservience to the interests and policies of the
respondent are hereinafter described, was a member of the confer-
ence committee, and chairman of the important salary and wages
committee; Fred Leete, assistant cashier, was the first treasurer;
Homer Hess, relief foreman, was a member of. the executive board,
and later president. Other active members included Austin and
Diehl, pipe-fitter bosses; Ross, painter boss; Coleman, master me-
chanic; and Wicker and Royce, production foremen. Candidates
for membership were required to take an oath to refrain from
affiliating with any organization which might interfere with the ac-
tivities of the A. C. W. A. Affiliation of the A. C. W. A. with any
other organization could be effected only with the consent of two-
thirds of the members. A further section providing for the presen-
tation of grievances to departmental representatives forbade mem-
bers with grievances from discussing them with fellow employees .14
Membership applications were obtainable from the head time-
keeper, or from the cashier's office, and dues of 25 cents a month
were deducted from the wages of members by the respondent.
A. C. W. A. headquarters were maintained in the respondent-owned
bunk house, and meetings were held twice a month in the respondent-
owned theatre. No charges for rent, light or heat were made by
the respondent for the use of any of its services or facilities.
'' Branek , a pipe-fitter boss and A . C W. A. departmental representative of from 200 to
2,50 employees , had occasion to present only three grievances to the respondent within the
18 months preceding the hearing.
148 NATIONAL LABOR RELATIONS BOARD
In an atmosphere pervaded with the influence of supervisory em-
ployees, and suffused with the respondent's benevolence, genuine
interest among the general employees soon subsided. During 1934,
meetings were attended by as many as 200 of some 500 members.
However, during 1935, the officers experienced difficulty in muster-
ing even a quorum of 50.
On February 18, 1936, the A. C. W. A., by vote of its members,
passed an amendment changing the requirement for affiliation with
any outside organization from two-thirds to a majority consent of
its members. On April 10, 1936, a resolution to affiliate with the
American Federation of Labor was defeated by a vote of 315 to 151,
after petitions opposing such affiliation were circulated among
the employees, left on desks, and placed upon bulletin boards
throughout the plant.
The impotence of the A. C. W. A. in its dealings with the respond-
ent, and the inadequacy of its administrative machinery to secure
any substantial benefits for its members are unmistakably revealed
in the record of its activities. We pass over the "beer busts", dances,
and other entertainments successfully conducted by the A. C. W. A.,
to consider its half-hearted and fruitless efforts to bargain collec-
tively and solve the housing situation in Trona.
It is agreed both by the Union and the respondent that at least
since the formation of the A. C. W. A., housing facilities at Trona
had been inadequate to meet the demands of an increasing popula-
tion. Although a housing committee was . appointed by the
A. C. W. A., its efforts were unavailing. Early in 1935 it attempted
to secure the cooperation of the respondent, and to finance and con-
struct additional houses. However, the respondent refused to lease
land or water facilities, and the plan was dropped. Finally, early
in April 1936, the A. C. W. A. triumphantly announced that the re-
spondent had agreed to appropriate $300,000 'and itself undertake to
relieve the housing shortage. Coming shortly after charges had been
filed with this Board, and when the Union had reached the height
of its activity to enlist members, we cannot believe that the respond-
ent's action was in any way influenced by the A. C. W. A., or was
any more than a sop to satisfy the growing discontent of its em-
ployees.
Until March 1936, no machinery existed for regular meetings
between the respondent and the A. C. W. A.; no wage agreements,
either written or oral, had ever been negotiated. In September
1934, the salary and wages committee held a conference with the
respondent, and it was agreed that a wage study be made. In
November of the same year, Martyn Porter, a system analyst in the
manager's office, after studying wages and living conditions in similar
communities in California, reported that a wage increase was not
DECISIONS AND ORDERS 149
warranted , and the matter was dropped . In February 1935, the
A. C. W. A. requested a ten per cent raise, and in July adjustments
were made for some positions.
On February 14, 1936, the A. C. W. A . sent a letter to Burke, the
respondent 's manager, asking for information regarding job classi-
fications in order to prepare another request for wage increases.
Burke , who we cannot believe was unaware of the union propa-
ganda that was threatening to destroy the placidity of the A. C. W. A.,
responded with the suggestion that a committee of the A. C. W. A.
meet regularly with the representatives of the respondent as a
joint committee to consider grievances.
On February 27, 1936 , the A. C. W. A., in an illuminating letter
to Burke, again requested a ten per cent wage increase, and described
its position in the following language:
In this case requesting readjustment in salaries and wages,
the employer can and should for all time destroy completely,
by responding to this request , all existing ill feeling , also the
feeling that in order to get any results , outside injurious con-
nections must be made. This response would not only give this
Association a good and solid foundation of faith, the act also
would give the Association some prestige badly lacking in the
past ..
The housing action appears very unpromising . In the wage
adjustment it now rests entirely with the employer and man-
agement whether our six months hard work and sleepless nights
have been spent in vain. If so, any further nerve-racking
efforts to build up by honest and earnest effort , the employers
own wall of protection against outside injurious connections,
is waste of time and valuable energy. [Italics ours.] 15
This letter, introduced by the respondent , speaks for itself and
clearly reveals that even the A. C. W. A. was cognizant of its sub-
servient role in the respondent 's policy of dealing with its employees.
Pursuant to Burke's request, a joint committee , consisting of the
Executive Board of the A. C. W. A., Porter, Allen , an assistant in
the manager 's office, and Burris, chief clerk in the industrial rela-
tions department , met for the first time on March 7, 1936. The
absence of authority or power in the committee is best described by
Porter's testimony :
As Mr . Burke explained it to me , it did not have any power
of definite decision . It was to formulate recommendations to
the management 's office. It required the management's office
approval to put the recommendations into effect , or to refer
them back for further consideration.
ss Respondent ' s Exhibit No. 8.
49446-38-vol. m-11
150 NATIONAL LABOR RELATIONS BOARD
Members of the joint committee were, given an address on the me-
chanics of collective bargaining by J. Stuart Neary, the respondent's
attorney, known to the Union as "Slugger" Neary for his alleged
strike-breaking activities in Los Angeles.' On March 8, the fol-
lowing day, the joint committee again convened, and wage rates in
the various departments were discussed separately. By April 1,
1936, as a result of these committee conferences, a wage adjustment
amounting to an eight per cent increase throughout the plant was
effected.
As in the solution of the housing problem, we cannot conclude, in
the light of the testimony and the events leading up to the forma-
tion of the joint committee, that the A. C. W. A. was instrumental in
securing this wage increase. Since September 1934, the A. C. W. A.
had attempted on various occasions to obtain a general increase in
wages. With the exception of small increases granted at random,
its efforts had been unsuccessful. Suddenly, with the advent of the
Union, the respondent's attitude changed. It arranged for regular
meetings with the A. C. W. A., and, not unmindful of rising union
activity, it generously and substantially acceded to the plea of the
A. C. W. A. The inference is inescapable that the respondent had
taken this opportunity to build up "the employer's own wall of
protection against outside injurious connections" (to quote from
the letter of February 27 from the A. C. W. A.), and had used the
A. C'. W. A. as a convenient instrument in its antiunion campaign.
After the filing of the Intermediate Report of July 6, 1936, the
respondent ceased its efforts to give the color of fair dealing to union
members, and made no further attempt to continue the illusion of
independence that it had impressed upon the A. C. W. A. The
A. C. W. A. responded, in turn, by attempting to function as a
true representative of the employees. Late in July, 1936, a proposed
amendment to the constitution which would have ousted all union
members from the A. C. W. A. was defeated. At the same time an
amendment was passed which divided members into two classes.
Those receiving salaries of over $200 a month were designated as
inactive members and deprived of the right to hold office, vote, or
take part in discussions at meetings. The testimony is uncontra-
dicted that the members of the A. C. W. A. were determined to re-
move the undesirable influence that the respondent's supervisory em-
ployees were exercising in the administration of their organization.
Finally, in August 1936, the respondent gave a brutal exhibition
of its attitude toward the efforts of the A. C. W. A. to attain inde-
pendence. On August 3 and August 6 the Executive Board pro-
tested the discharge of Lamson and Goddard and the demotion of
Is Board's Exhibit No. 3 (a) (second hearing).
DECISIONS AND ORDERS 151
Ivers, and asked for a conference with the respondent after it had
concluded that the respondent had discriminated against these em-
ployes because of their union activities .,,' On August 11, a meeting
of the joint committee was held, the A. C. W. A. being represented by
Webb , Kunkel, Pulcifer , Winslow , Cline, and Scott . Answering the
A. C. W. A. protest, Porter stated that "the Management had decided
that the action taken by the Departments concerned was final, and
that the three cases were closed." 18 Within the next week , all of the
above-named association representatives on the joint committee, with
the exception of Scott , an unenthusiastic participant in the protest,
were discharged by the respondent . The inference is clear that the
respondent was motivated by the desire to discipline the A. C. W. A.
for attempting to function independently and as a representative of
the employees.
We find that prior to July 5, 1935, the respondent dominated and
interfered with the formation of, and at all times thereafter dom-
inated and interfered with , and contributed support to the
A. C. W. A., a labor organization of the employees in its Trona
plant.
C. The discharges
In the case of Whitehurst , Wright, and McConahey , treated below,
in addition to the reasons assigned for the individual discharges,
the respondent contended that these employees were dismissed be-
cause they discussed Union activities during working hours ; that
numerous complaints had been made that these men were loafing,
talking, and annoying other men in the plant . The respondent ad-
mitted that prior to the events surrounding the individual discharges,
it had already determined to dismiss the three employees . Ferris,
the master mechanic , testified that he and Eason , the chief engineer,
in discussing Whitehurst , Wright, and McConahey shortly before the
discharges , had agreed that "it would be the best thing for the
organization to get rid of them."
However , the record does not bear out the contention that these
employees carried on discussion during working hours to a degree
which would have warranted their discharge , and it is a reasonable
assumption that the respondent objected to the matters discussed,
rather than to the time the men spent in talking . Although there is
testimony that they talked while at work , there is no convincing
evidence that this interfered with efficiency or discipline.
The respondent had never forbidden its employees to talk on the
job, and the record is replete with evidence that A. C. W. A. affairs
were freely discussed and even conducted during working hours. As
17 The discharges and the demotion are considered hereafter.
18 Board 's Exhibit No. 6 (b ) ( second hearing).
152 NATIONAL LABOR RELATIONS BOARD
we have noted above, petitions for the adoption of the constitution,
as well as petitions opposing affiliation with the American Federa-
tion of Labor, were openly circulated throughout the plant. Appli-
cations for membership in the A. C. W. A. were obtainable both
from the head timekeeper and the cashier's office.
In the light of all the testimony, we can find no merit in the
respondent's contention that the conduct of these employees war-
ranted their dismissal. They were never reprimanded or warned
that they were talking too much, and the fact that the respondent
waited until circumstances developed which gave some color to its
action indicates that the respondent itself was not impressed with
its own contention.
Richard C. Whitehurst. Whitehurst began to work for the re-
spondent on May 10, 1935, as a general helper in the maintenance
department at 45 cents per hour.19 In August 1935, he was promoted
to the position of oiler at 56 cents per hour, and later received a
two-cent per hour raise. At the time of his discharge on April 6,
1936, Whitehurst's duties, under the supervision of George White,
maintenance inspector, consisted in oiling, greasing, and cleaning
machinery in the potash plant.
Whitehurst was active in the formation of the Union at Trona,
having investigated the activities of the Kramer local in December
1935. He was a charter member of the Trona local, its treasurer and
financial secretary, and actively engaged in soliciting members for
the Union.
Shortly prior to his discharge, arrangements were made to trans-
fer Whitehurst to the pyroborate plant, and Blake, the oiler in the
pyroborate plant, to Whitehurst's post. During the week preceding
his discharge the men alternated in the two plants. The reason as-
signed by the respondent for the discharge of Whitehurst was his
failure to obey an order given by his superior, White, on April 3,
1936. On that day, White instructed another oiler to tell Whitehurst
and Blake to clean under a machine in the potash plant. Misunder-
standing the instructions, Whitehurst failed to complete the required
cleaning, being occupied with another task. On April 6, White dis-
charged Whitehurst, telling him that he wanted a man "he could
depend upon."
Whitehurst, during the period of his employment, had never been
disciplined or threatened with discharge for inefficiency or violation
of company rules. He appealed to both Ferris, the master mechanic,
and Burke, but to no avail. It is significant that a week after the
discharge the machine had not been thoroughly cleaned as White
testified his order had required.
1
9 Unless otherwise indicated, the discharged employees who were paid on an hourly
basis worked eight hours a day and 48 hours a week.
DECISIONS AND ORDERS 153
Whitehurst's failure to understand instructions, coming to him sec-
ond-hand, was understandable. It is obvious that the duty which he
failed to perform could not have been very urgent, since for a period
of at least a week thereafter the instructions had not been carried
out. In any event, the entire incident could not have had great
significance, especially since the respondent makes no claim that
Whitehurst deliberately disregarded the instructions.
These conclusions are buttressed by the respondent's testimony
which clearly indicates that Whitehurst was dismissed for his union
activity. The respondent contended that because of numerous com-
plaints, Ferris had ordered the transfer of Whitehurst. However,
this contention is not impressive. White testified that he did not
directly receive any complaints regarding Whitehurst's conduct, al-
though he was Whitehurst's immediate superior. He further ad-
mitted telling Whitehurst, a short time prior to his discharge, that
his work was satisfactory. Upon cross-examination he stated that
he would have permitted Whitehurst to remain on the job and that
he had no part in the transfer. It is significant that Whitehurst
was never warned that he was causing dissension among the men
or otherwise engaging in conduct that would impair the efficiency of
his work.
The reason noted for his discharge on the termination of employ-
ment card for the California Unemployment Compensation Commis-
sion was "unsuitable." Whitehurst refused to sign this card and we
are satisfied from the evidence that he was not discharged for alleged
unsuitability but because of his union activities.
Earl Wright. Prior to his employment by the respondent, Wright
had been a pipe-fitter and pipe-fitter's helper. He was hired by the
respondent in August 1933, as a general helper at 45 cents an hour.
A week later he was promoted to the position of pipe-fitter's helper,
and less than a year later was given the classification of pipe-fitter,
first class, at 76 cents an hour.20 Wright's duties as a pipe-fitter
under Branek and Diehl, pipe-fitter bosses, consisted in the instal-
lation and maintenance of pipes and valves. Prior to April 1936,
he had the additional duty of inspecting steam equipment, steam
traps, air appliances, and air lines. The testimony amply shows
that Wright was an able and efficient employee and that his services
were satisfactory until his union activities came to the attention of
the respondent.
More aggressive than Whitehurst, Wright, who was also a charter
member of the Union, was likewise active in union affairs. He was
elected secretary of the Union and arranged for the first meeting at
20 This promotion was unusual since Wright was not first required to serve as a third
or second class pipe-fitter.
154 NATIONAL L AI3OI3 RELATIONS BOARD
Burnham in February 1936. He was also instrumental in persuad-
ing Hyans, a Los Angeles organizer for the American Federation of
Labor, to address the Union during March 1936.
Wright was discharged on April 17, 1936, being told by Austin,
the pipe-fitter foreman, that the lack of work necessitated a reduc-
tion in the force of pipe-fitters. However, a consideration of the
evidence demonstrates that this reason had no foundation in truth.
Two weeks prior to Wright's dismissal, another first class pipe-fitter
had been hired, and, except for Wright, the staff of pipe-fitters was
not reduced. When Wright, who was sixth among the nine pipe-
fitters in point of seniority at the time of his dismissal, asked Austin
whether seniority meant anything, he was told "No, not in some
cases."
As we have above stated, and the record clearly shows, the respond-
ent had previously planned to discharge Wright, Whitehurst, and
McConahey, whose case is considered next. The respondent's plan
was further evidenced by the marked hostility which Branek, his
immediate superior, revealed toward Wright. Wright testified
that early in March, Branek told him that the first time he was
caught without tools in his hands he would be fired. Branek ad-
mitted making this statement but denied that it was motivated by
Wright's union activities. This denial, however, can be given little
credence in the light of further evidence of Branek's attitude toward
Wright's union connections.
Branek, who edited a column entitled "Sport Shots" in the A.
C. W. News, the publication of the A. C. W. A., devoted almost an
entire article to Wright in the issue of March 3, 1936, whom he
characterized as follows :
During the past two years this man has enjoyed the luxury
of a good car, saving additional money now in the post office.
No hard body-destroying labor was or is asked of him or any-
one else. Here we ask this man: "Who paved the road from
starvation to decent living ?" No, not the boss, the American
Potash and Chemical Corporation.
Here again we ask him, "What prompted him to act as the
chief aid in distributing the application slips brought to Trona
by Mr. Calvin?" (referring to union application blanks).
Such is human nature, such are some humans.
No, this man will not get fired. All humans make mistakes,
some of them regrettable later * * *.21
Board ' s Exhibit No . 13. The article did not mention Wright by name , but Branek
admitted he was writing about him. In a letter to the editor of the News, Wright an.
swered the attack, stating : "In spite of the fact that I am an ingrate because I lent some
aid to the cause of organizing the American Federation of Labor , my sole purpose in so doing
has been to elevate the economic and social conditions of my fellow workers in Trona."
DECISIONS AND ORDERS 155
Wright refused to sign the termination of employment card for
the California Unemployment Compensation Commission. Two
reasons were given for his discharge thereon : "reduction in force",
and "as he cannot be used around the plant due to not being able
to get along with fitter boss." It is significant that Wright was
not apprised of this latter reason when he was dismissed. The
respondent's silence, unexplained at the hearing, leads to a reasonable
inference that this excuse was an afterthought, used as a pretext to
cover the fact that Wright was discharged for his union activity.
Furthermore, the respondent offered little testimony to prove its
assertion that its force was being reduced, but instead, attempted to
prove that Wright's carelessness and inefficiency justified his dis-
charge. The record conclusively shows, and we so find, that Wright
was discharged because of his affiliation with, and his activities on
behalf of the Union.
J. C. McConahey. McConahey was hired by'the respondent as an
oiler at 54 cents an hour in August 1934, and at the time of his
discharge was working as a pump packer under White, earning 66
cents an hour.
McConahey was also active in union affairs. He was a charter
member of the Union, a trustee, member of the executive committee,
and chairman of the membership committee. In March 1936, with
Goddard, who was also later discharged, he had endeavored to se-
cure a meeting place for the Union in Trona. McConahey dis-
tributed applications for membership in the Union, and as a member
of the A. C. W. A., campaigned for its affiliation with the American
Federation of Labor when the resolution was first proposed in Febru-
ary 1936.
On April 13, 1936, while engaged in cleaning a "splash-proof"
motor, McConahey turned a low velocity stream on it, causing a
short circuit of the lead wires and putting the motor out of com-
mission. An electrician who was present at the time succeeded in
repairing the damage and restoring the operation of the motor
within a half hour. On April 15 White discharged McConahey, as-
signing two reasons : that he had disregarded an order forbidding
the use of water in cleaning motors, and that he had failed to "code"
White immediately after the accident had occurred.22 Although the
respondent introduced into evidence a copy of the order, it was ap-
parently addressed to foremen, and was not shown to have been
brought to the attention of McConahey, or that he knew of its
existence.23 Since it was not denied that an electrician was present
22 The respondent 's telephone system in the plant included a "code" system for various
employees . In cases of emergency, a worker or foreman would be notified by dialing his
"code" number which rang throughout the plant.
28 Respondent ' s Exhibit No S. Ferris , the master mechanic, admitted that he had
never seen this order, although he had instructed foremen not to permit motors to be
washed.
156 NATIONAL LABOR RELATIONS BOARD
when the motor stopped and steps were immediately taken to repair
the leads, we cannot accept the respondent's contention that an emer-
gency existed which would have warranted the use of the "code"
system.
Nor can we accept the contention that the accident warranted the
discharge. A similar accident had occurred six weeks prior to
McConahey's discharge, when, though a complete motor "shorted
out" and shut down a unit in the soda products plant for several
days, the employee, who had also used water in that instance, was
laid off for the equivalent of four days and was not discharged. It
is indisputable that McConahey was an efficient and trusted employee.
White reluctantly admitted on cross-examination that McConahey
had been his "right hand" man and that he took charge of the "gang"
in his absence. In comparison with its treatment of the employee
whose act had caused considerably more damage and had more se-
rious consequences than McConahey's, the respondent's dismissal of
McConahey can be characterized only as discriminatory.
As in the discharges of Whitehurst and Wright, the evidence is
clear that the respondent had previously planned to dismiss McCon-
ahey, and the proper inference follows that the union activity of
these employees was the reason for their discharge. Upon cross-
examination Ferris admitted as much with respect to McConahey's
discharge :
Q. When you had your conversation with Mr. White in re-
gard to McConahey's discharge you told him that you thought
that the incident of the motor was sufficient cause for the dis-
charge, did you likewise have in mind your conversation with
Mr. Eason in regard to McConahey's talking union on the job?
A. Not particularly in that instance; no. I make those deci-
sions myself.
Q. Were your ideas based solely and exclusively on the inci-
dent connected with the motor?
A. Oh, it no doubt had some bearing on the fact that we were,
we had previously made up our minds to get rid of those three
men in the organization, yes * * *.
We conclude that McConahey was dismissed because he was a
member of the Union and because of his activities in connection
therewith.
Henry Simpson Hardie. Hardie, a British subject, was hired by
the respondent in September 1927, as a general helper at 48 cents per
hour. He was soon promoted to the position of salt-trap helper at
50 cents an hour, then to the position of filter operator at 55 cents
an hour, thereafter to the position of salt-trap operator, and in Sep-
tember 1934, to the position of relief operator at 70 cents an hour.
DECISIONS AND ORDERS 157
In October or November of the same year, Hardie was demoted to
the position of heater tender at 66 cents per hour. Bridgeford, his
superior, testified that Hardie had been demoted because of a rumor
current in Trona that he had said he knew how to shut down opera-
tions of the plant and would not hesitate to make use of his knowledge
in the event of a strike. At that time the respondent made no effort
to ascertain whether this rumor had any basis of truth.
Hardie, too, had been active in union affairs. He was a charter
member of the Union, had participated in the investigation of the
Kramer local, and had been instrumental in obtaining the aid of
Hyans in the organization of the respondent's employees.
Hardie was discharged on April 9, 1936. A short time prior to
his dismisal, Hardie requested his superior, Bridgeford, to endorse an
attestation of good character on his application for the renewal of
his passport. In answer to this request, Bridgeford stated that he
would first investigate Hardie's reputation in the plant and in Trona.
Hardie did not object to such investigation, but requested that the
rumor which had caused his demotion also be investigated. Bridge-
ford announced his intention of limiting his inquiry, and refused to
investigate the rumor. Upon Hardie's insistence that his entire
record be reviewed, Bridgeford discharged him because of "personal
friction." The respondent did not contend that Hardie's insistence
had taken the form of disrespect or impertinence toward Bridgeford,
or that Bridgeford had discharged Hardie in the heat of anger. It is
admitted that Hardie's discussion with him consumed the greater
part of the day, and we can only infer that Bridgeford's decision to
discharge Hardie had been preconceived and consciously motivated
by the respondent's plan, which was being put into effect during this
period, to oust union members.
On the basis of the facts, it is evident that the respondent desired
to dismiss Hardie for his union activity and was not concerned with
assigning a reason therefor which possessed either color or substance.
Hardie had been warned, through statements made to his wife, that
his union activities were objectionable to the respondent, and it is a
reasonable inference that Bridgeford's position was intended to and
did provoke Hardie justifiedly to continue his insistence upon a
thorough investigation of his character. Hardie's long residence in
Trona, the satisfactory character of his work, as indicated by numer-
ous promotions, and the fact that the respondent had kept him in its
service despite the rumor of 1934, belies Bridgeford's testimony that
he knew nothing of Hardie's character, and therefore desired to
conduct an investigation. Assuming the truth of Bridgeford's testi-
mony, certainly his ignorance of Hardie's character would have made
more imperative the thorough investigation which Hardie had re-
158 NATIONAL LABOR RELATIONS BOARD
quested. The testimony of both the respondent and Hardie justifies
our finding that Hardie was discharged solely because of his union
activity."
H. 0. Goddard, Robert 0. Lamson, Leroy Pratt, J. L. Ivers. Fol-
lowing the issuance of the Trial Examiner's Intermediate Report on
July 6, 1936, the respondent, presumably satisfied that its discrimina-
tory labor practices would no longer be subject to question by this
Board, engaged in a bold and ruthless campaign to expunge all traces
of union activity and all freedom of expression in its plant.25 Ivers,
Goddard, Lamson, and Pratt had all been officers of the Union and
active in its affairs.
Goddard, who was vice president of the Union and had testified for
the Board at the first hearing, was discharged by Bridgeford on
August 4, 1936, for "unsatisfactory conduct." When pressed for an
explanation, -he had said : "Unsatisfactory conduct is enough infor-
mation on our records, and I don't care to go into this thing any
further." Prior to his discharge Goddard had been a calciner tender,
earning 64 cents per hour.
Lamson, a swing tender, earning 60 cents per hour, was elected
financial secretary of the Union after the discharge of Whitehurst.
He first learned that he had been dismissed at a meeting of the
A. C. W. A. on August 4, 1936. The following day, when he asked
Bridgeford, he was told to consider himself notified of his discharge.
Again the laconic "unsatisfactory conduct" was assigned as the rea-
son, Bridgeford saying, "You can't make me give you a better
reason."
Pratt had been employed by the respondent for ten years, and
prior to his discharge was a salt-trap tender, earning 76 cents per
hour. He was a charter member of the Union and on the Union's,
executive board. Pratt was discharged on August 15, 1936, for "un-
satisfactory conduct." When he appealed to Bridgeford, he was
told, "That doesn't mean that your work is unsatisfactory; it is just
unsatisfactory." 26
Ivers, a foreman for the respondent at 80 cents per hour, was
recording secretary for the Union and active in its affairs. On
August 1, 1936, as he was about to leave Trona on a 30-day vacation, he
was told by his superior that his services as a foreman would no longer
be required, but that upon his return, he might secure a position
21 The respondent later gave the requested attestation of character to Mrs . Hardie, the
employee 's wife.
-^ During the second hearing commencing on October 15, 1936 , upon these discharges
and those hereinafter considered, the respondent introduced no evidence to contradict the
testimony of the discharged employees , but confined its efforts to their cross -examination.
26 Testimony relating to this discharge was given by Goddard , since Pratt could not
be located . Since Goddard had knowledge of the facts in his capacity of a union official,
we have no reason to doubt his veracity . Moreover , the respondent admitted the discharge
and failed to controvert Goddard 's testimony thereon
DECISIONS AND ORDERS 159
as general helper at 50 cents an hour. Ivers considered this tanta-
mount to a discharge , left for New Mexico and did not return. On
August 3, 1936, the A. C. W. A. protested his demotion to the re-
spondent , pointing out that a less experienced employee had been as-
signed to his position , and that the respondent had always considered
Ivers' services satisfactory . It is significant that on August 11, dur-
ing the meeting of the joint committee at which the demotion was
discussed , the respondent failed to give any reason for its action.27
Harold Carl Webb, Owen Scott Kunkel, Elmer Pulcifer, George E.
Cline, Lawrence A. Sheriff , Russel V. Wilgus, J. B. Kennard , Elbert
Marshall Ball. As indicated above, Webb , Kunkel , Pulcifer, and
Cline, all members of the joint committee representing the A. C. W.
A., protested the discharges of Lamson and Goddard and the demo-
tion of Ivers at the committee meeting on August 11, 1936. By the
end of the following week they had all been discharged.
Webb, employed by the respondent since 1933 , and chairman of
the executive board of the A. C. W. A., was an associate analyst at
a salary of $170 a month , and at the time of his discharge was being
considered for the position of senior analyst. He was discharged,
without cause , by his immediate superior , Durland, who told him
that the order "came from up above".
Kunkel , employed by the respondent since January 1936, was
the associate editor of the A. C. W. A. News and temporary secre-
tary of the A . C. W. A., and had written the letters of protest to
the respondent. He was discharged from his position as calciner
tender, in which he earned 60 cents per hour, on August 17, 1936.
On that day, learning that his name did not appear on the work
schedule , he inquired in the industrial relations department, where
he was told , "I guess you know the news ." No explanation was
given for his discharge.
Pulcifer, an employee since 1933, at the time of his discharge was
a relief janitor , earning 60 cents per hour. He first learned of his
discharge on August 15, 1936 , from the cashier of the respondent's
restaurant, when she refused to sell him a "scrip book" used for
the purchase of meals. As in the other cases, Pulcifer was given no
explanation for his discharge.
Cline, acting president of the A. C. W. A., was employed by the
respondent since September 1934 . He was a junior analyst, earning
$155 a month at the time of his discharge . On August 14, 1936,
he was told by Durland, the ' assistant comptroller chemist, "I have
orders to stop your pay immediately ." Kidd, his immediate superior,
in response to Cline's request for a reason for his discharge, said,
"Well , you know as much about it as I do."
27 See discussion of joint committee meeting, supra,
160 NATIONAL LABOR RELATIONS BOARD
All of the above-named men had been active in A. C. W. A. affairs,
especially in its effort to remove the influence of the respondent
from its administration. None had ever been reprimanded or other-
wise disciplined, and the record clearly indicates that they were
efficient and satisfactory employees.
Sherriff, editor of the A. C. W. A. News, was an operator in the
pyroborate plant, receiving $175 a month. He had first been em-
ployed as a helper in August 1933. Sherriff's activities may be classi-
fied with those of Webb, Kunkel, Pulcifer, and Cline, as directed
toward building up the A. C. W. A. as an organization truly rep-
resentative of the respondent's employees. As the others, he was
not a member of the Union, and he had attempted to maintain a
neutral editorial policy. On August 14, 1936, Johnson, the factory
superintendent, said tb him, "Larry I have some sad news for you.
I have instructions to say that you are undesirable, and I am sorry
I can't say anything more, except that you have 24 hours in which
to leave." 28 Sherriff, seeking an explanation for his dismissal, then
saw Lewis; his immediate superior, who said, "I have instructions
to not discuss any reasons. You probably know them better than
I do."
Wilgus, at the time of his discharge, was receiving $155 a month
as a junior analyst, having been hired as a chemist in May 1934.
A member of the A. C. W. A., though not an officer, Wilgus was
also desirous of purging the association of respondent domination.
He was present at the meeting of the executive board, early in
August, when it decided to protest the discharges of union men, and
he was known to the respondent as having made "radical state-
ments". On August 15, 1936, Durland discharged him, saying "I
have orders to take you off the pay roll." The evidence is uncon-
troverted that Wilgus' services were satisfactory to the respondent,
and the inference is inescapable that' the respondent considered him
undesirable solely because of his activities in connection with the
A. C. W. A.
Both Kennard and Ball were members of the Union. and the last
two who openly espoused the union cause in Trona. Kermard, em-
ployed as a shovel engineer at $194 a month, was a charter member
of the Union and its president since March 1936. He had been
active in union affairs and had testified at the first hearing conducted
by this Board. Kennard's services had been satisfactory to the re-
spondent since November 1931, when he was first employed, and he
had never been reprimanded or otherwise disciplined. On August 14,
1936, he was discharged by Runner, the shipping superintendent.
m By company rule. an employee is required to vacate his living quarters on the
respondent 's property within 24 hours after his discharge.
DECISIONS AND ORDERS 161
When Kennard asked whether it was because of unsatisfactory con-
duct, Runner answered, "No, just unsatisfactory."
Ball, earning $135 per month as a bookkeeping machine operator,
was a member both of the Union and the A. C. W. A. He was a
member of the executive council of the'Union, representing the sup-
plies department, and since June 1936, had spent considerable time
in the company of Goddard and Lamson. As a member of the
A. C. W. A., he was equally interested in its welfare, and circulated
petitions favoring the amendment to oust supervisory employees
from control, and opposing the amendment which would oust union
members. On Sunday, July 18, 1936, Ball came to his office under
the influence of liquor, and was unable to perform his duties.29 At
that time he offered to resign, but was told by his superior, Seignous,
that his resignation was not necessary. On August 11 Ball reported
to work a few minutes late and found that his machine had been
removed. He was sent home, and on August 12, 1936, told by
Wuster, Seignous' superior, that his services were no longer re-
quired; that he was undependable and was reported intoxicated on
July 18. On the day of his discharge Ball saw Franklin, head of
the industrial stores department, in order to obtain a satisfactory
explanation for his dismissal. 'Franklin told him that his associates
were leading him astray, and that though anyone was free to join
the Union, he did not care for "Communists." 30 Ball's Unemploy-
ment Compensation termination card listed the reason for his dis-
missal as "excessive absences." Since, throughout his year's employ-
ment with the respondent, he had been absent only on one Sunday,
this reason is not persuasive, and we find that Ball's dismissal re-
sulted because of his activities both for the Union and the
A. C. W. A.
The respondent's actions and discharges subsequent to July 6, 1936,
unquestionably lead to but two conclusions. The respondent was
determined to carry out its plan, conceived at the time of the forma-
tion of the Union, to stamp out every spark of union activity in its
plant. It was equally determined to maintain the A. C. W. A. as a
subservient creature to counteract the effects of its reprehensible
labor practices.
Franklin F. Matlock, Otto Duval, Fred Balch. Not satisfied with
stifling A. C. W. A. opposition and stripping the Union of its
officers, the respondent next directed its efforts to destroying entirely
the vestiges of union organization. Matlock, Balch, and Duval, all
29 The evidence shows that Ball was accustomed to work one Sunday every month to
balance the respondent's books , and that he was free to choose any Sunday during the
month to suit his own convenience.
801'Q. When Mr . Franklin made that statement to you about any person in Trona
being permitted to belong to any union , did you believe that at that time?
"A. I did not. No sane person could have believed it."
162 NATIONAL LABOR RELATIONS BOARD
union members, were not active in union affairs, and from the rea-
sons alleged for their discharges, it appears that their union affilia-
tion was sufficient to make their presence in Trona obnoxious to the
respondent.
Matlock had been employed by the respondent since 1929, and at
the time of his discharge was earning 66 cents an hour as a pump
packer. He had been a union member since March 1935, and al-
though he did not wear a union button, fearing that he would be
discharged, the evidence is clear that his affiliation with the Union
was not unknown in Trona. On September 29, 1936, Matlock stepped
outside the building in which he was working, in order to get relief
from the heat. He was reprimanded by Frael, a foreman, and on
the following day was discharged by White, his superior. Previous
to this incident, Matlock had never been laid off, threatened with
discharge, or disciplined. He testified that during his seven year
period of employment, he had been accustomed to taking a five
minute rest period, that his superiors were aware of this conduct, and,
that he had never been told to stop. The day after his discharge
Matlock suggested to White that he had been dismissed because he
carried a union card, but White refused to make any comment.
Several days after Matlock's discharge, Duval was promoted to
Matlock's position and given a wage increase from 58 • to 66 cents
per hour. Duval, who had joined the Union in May 1936, like
Matlock, did not wear his union button. For the period of two weeks
prior to his discharge, Duval had been breaking in a. new oiler, but
by October 1, the date of his promotion, the oiler was carrying out
his duties without assistance. On October 2, pursuant to an order
from White, his superior, Duval, instead of helping the oiler, engaged
in packing two pumps. On October 3 he was discharged by White
because he failed to assist the new oiler. Immediately thereafter,
when Duval told White's subordinate, Blake, that he had been dis-
missed, Blake responded by saying that he should not have joined the,
Union. The reason for his discharge was noted on the California
Unemployment Compensation card as "unsatisfactory". Duval, em-
ployed since April 1936, had never been reprimanded or otherwise
disciplined. We are not impressed with the circumstances surround-
ing Duval's discharge, and we can only infer that he was an innocent
victim of the respondent's scheme to annihilate the Union.
Balch had been employed by the respondent since 1934 as a first
class painter at 76 cents per hour. His work was satisfactory to
the respondent, and in the absence of Ross, his foreman, he had been
accustomed to supervise the "paint gang." On several occasions
prior to his discharge, Ross had told him that he would be dis-
charged if he spoke too much about union activity. Balch was dis-
charged on October 1, 1936, by Anderson, Ross' superior, for turning
DECISIONS AND ORDERS 163
on the radio in the room of a house he had just completed painting.
Balch testified that he had reset the furniture, that he had turned
on the radio in order to determine whether it was properly con-
nected, and that he was working when Anderson approached.
The reasons assigned for the discharges of these three employees
are too tenuous and trivial to impress us. It is significant that the
respondent had full opportunity to offer evidence to controvert the
testimony of these men, yet it was content to remain silent. We con-
clude that the only offense Matlock, Balch, and Duval committed
was joining the Union.
Consideration of all the evidence leads unquestionably to the con-
clusion that the respondent contributed support to the A. C. W. A.,
a labor organization of its employees; that by its conduct, and by
its discharge of Kunkel, Sherriff, Webb, Cline, Pulcifer, and Wilgus,
it dominated and interfered with the administration of the A. C.
W. A.; that by its conduct and the discharge of its above-named
employees, and the discharge of Wright, Hardie, McConahey, White-
hurst, Goddard, Lamson, Kennard, Pratt, Matlock, Duval, Ball, and
Balch, and by the demotion of Ivers, the respondent dominated and
interfered with the formation and administration of the Union and
discriminated against its employees in regard to hire and tenure of
employment to discourage membership in the Union; that by virtue
of its conduct, and these discharges, it interfered with the right of
its employees to self-organization, to form, join, or assist labor or-
ganizations , to bargain collectively through representatives of their
own choosing, and to engage in concerted activities, for the purpose
of collective bargaining and other mutual aid and protection.
III. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
As indicated under our findings with respect to its business, the
respondent, a Delaware corporation, maintains its plant in the State
of California, and sales offices in the States of New York, Georgia,
Maryland, and Ohio. It is one of the three largest producers of
potash in the United States, and one of the two largest borax pro-
ducers in the world. Ninety-two and two-tenths per cent of its sales,
amounting to 260,052 tons, are shipped outside California to other
States, possessions of the United States, and foreign countries. As
an integral part of its operations, the respondent owns and operates
the Trona Railroad, a connecting link with the Southern Pacific
Railroad , and subject to the tariff regulations of the Interstate Com-
merce Commission.
The unfair labor practices engaged in by the respondent have had
the effect of causing discontent among its employees, and- undoubt-
edly tend to lead to a labor dispute which would seriously disrupt
164 NATIONAL LABOR RELATIONS BOARD
the respondent's production and shipping operations. Following
the discharges, the employees commenced to fear for the security of
their jobs, and there is some testimony that they. were considering
a strike. The Union, its membership depleted by discrimintory dis-
charges, exerted its efforts to enlisting the assistance of outside labor
organizations. During August and September, 1936, the Union com-
menced negotiations with the International Longshoremen's Asso-
ciation to have the respondent's products declared "hot cargo" and
the Association's members refuse to handle them.3''
The activities of the respondent set forth in Section II above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
with foreign countries, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Under Section 2, subdivision (3) of the Act, an employee whose
work has ceased because of any unfair labor practice retains his
employee status as long as he has not obtained regular and substan-
tially equivalent employment. Since the discriminatory discharges
above enumerated constituted unfair labor practices, these dis-
charged employees retained their employee status.
The discharged employees are entitled to reinstatement. They are
also entitled to receive back pay from the date of their discharge
until the respondent offers to reinstate them. In so finding, we follow
our decision in Matter of Bell Oil and Gas Company '32 in which we
likewise ordered that the employees receive back pay from the date
of their discharge until the offer of reinstatement, although the Inter-
mediate Report had recommended that the complaint be dismissed.
We distinguish the instant case from those in which we have not
ordered that the employees receive back pay from the date that the
Trial Examiner issued his Intermediate Report to the date of our
Order.33 In Matter of Ha f f el finger Company, Inc. we said : "We
believe, however, that in view of the Trial Examiner 's recommenda-
tions, respondent could not have been expected to reinstate the dis-
charged men after it received the Intermediate Report, and therefore
it should not be required to pay back pay from that time to the
At that time , the International Longshoremen 's Association was negotiating the
renewal of its own collective agreements, and action with respect to the respondent was
held in abeyance.
82 I N. L. R. B. 562
83In the Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of
North America, Local No. 6, I N. L. R B. 760; In the Matter of Brown Shoe Company,
Inc. and Boot and Shoe Workers' Uron , Local No. 655, I N. L. R. B. 803 ; In the Matter
of Mann Edge Tool Company and Federal Labor Union No. 18779, 1 N. L. R. B. 977.
DECISIONS AND ORDERS 165
date of this decision." In that case, as in the other cases cited, the
trial examiner found that the respondent had not engaged in unfair
labor practices with respect to the discharges. In the instant case,
however, the Trial Examiner found that the respondent had en-
gaged in unfair labor practices with respect to the discharges of its
employees named in the original complaint. He recommended that
the respondent reinstate these employees, although he further rec-
ommended that the complaint be dismissed since he found the acts of
the respondent were not unfair labor practices affecting commerce
within the meaning of Section 2, subdivisions (6) and (7), of the
Act. It would, therefore, clearly appear that the respondent by its
failure to reinstate these discharged employees did not rely upon the
Trial Examiner's recommendations. On the contrary, it used the
Trial Examiner's finding as a basis for discharging union members
and their sympathizers without even a pretense that the discharges
were for any reason but to destroy completely the desire of its
employees to self-organization without interference.
We have found that the respondent caused the A. C. W. A. to be
organized, exerted an influence over it that amounted to domination
and interference with its administration, and contributed support to
it. It follows that the A. C. W. A. cannot serve the respondent's
employees as their genuine representative. To release them from
the subtle compulsions which have arisen and have prevailed by rea-
son of the respondent's conduct, the A. C. W. A. should be dis-
established.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in the proceeding, the Board makes the following con-
clusions of law :
1. Borax and Potash Workers' Union No. 20181 is a labor organi-
zation, within the meaning of Section 2, subdivision (5) of the Act.
2. Allied Chemical Workers' Association is a labor organization,
within the meaning of Section 2, subdivision (5) of the Act.
3. By its domination and interference with the formation and
administration of the Allied Chemical Workers' Association, and by
contributing support thereto, the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8,
subdivision (2) of the Act.
4. Earl Wright, Henry Simpson Hardie, J. C. McConahey, Richard
C. Whitehurst, H. O. Goddard, Robert O. Lamson, Elbert Marshall
Ball, J. B. Kennard, Leroy Pratt, Owen Scott Kunkel, Lawrence A.
Sherriff, Harold Carl Webb, George E. Cline, Elmer Pulcifer, Russel
V. Wilgus, Franklin F. Matlock, Otto Duval, and Fred Balch were,
at the time of their discharge, and at all times thereafter, employees
49446-38-vol. nu-12
166 NATIONAL LABOR RELATIONS BOARD
of the respondent, within the meaning of Section 2, subdivision (3)
of the Act. J. L. Ivers was at the time of his demotion, and at all
times thereafter, an employee of the respondent, within the meaning
of the same Section and subdivision of the Act.
5. The respondent, by discriminating in regard to the hire and
tenure of employment of Earl Wright, Henry Simpson Hardie, J. C.
McConahey, Richard C. Whitehurst, H. O. Goddard, Robert O. Lam-
son, Elbert Marshall Ball, J. B. Kennard, Leroy Pratt, Owen Scott
Kunkel, Lawrence A. Sheriff, Harold Carl Webb, George E. Cline,
Elmer Pulcifer, Russel V. Wilgus, Franklin F. Matlock, Otto Duval,
Fred Balch, and J. L. Ivers, and thereby discouraging membership
in a labor organization, has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8, subdivision (3) of
the Act.
6. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8, subdivision (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10, subdivision (c) of the National
Labor Relations Act, the National Labor Relations Board hereby
orders that the respondent, American Potash and Chemical Corpora-
tion, and its officers, agents, successors, and assigns, shall:
1. Cease and desist :
a. From in any manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining and
other mutual aid or protection, as guaranteed in Section 7 of the
National Labor Relations Act;
b.' From discouraging membership in Borax and Potash Workers'
Union No. 20181, or any other labor organization of its employees,
by discharging, refusing to reinstate, or otherwise discriminating
against its employees in regard to hire or tenure of employment or
any term or condition of employment;
c. From in any manner dominating or interfering with the admin-
istration of the Allied Chemical Workers' Association, or any other
labor organization of its employees, and from contributing support
DECISIONS AND ORDERS 167
to the Allied Chemical Workers' Association, or to any other labor
organization of its employees.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
a. Offer to Earl Wright, Henry Simpson Hardie, J. C. McConahey,
Richard C. Whitehurst, H. O. Goddard, Robert O. Lamson, Elbert
Marshall Ball, J. B. Kennard, Leroy Pratt, Owen Scott Kunkel,
Lawrence A. Sherriff, Harold Carl Webb, George E. Cline, Elmer
Pulcifer, Russel V. Wilgus, Franklin F. Matlock, Otto Duval, Fred
Balch, and J. L. Ivers, immediate and full reinstatement, respec-
tively, to their former positions, without prejudice to their seniority
or other rights and privileges;
b. Make whole said Earl Wright, Henry Simpson Hardie, J. C.
McConahey, Richard C. Whitehurst, H. O. Goddard, Robert O.
Lamson, Elbert Marshall Ball, J. B. Kennard, Leroy Pratt, Owen
Scott Kunkel, Lawrence A. Sherriff, Harold Carl Webb, George E.
Cline, Elmer Pulcifer, Russel V. Wilgus, Franklin F. Matlock, Otto
Duval, and Fred Balch for any losses of pay they have suffered by
reason of their discharge, and J. L. Ivers for any loss of pay he
has suffered by reason of his demotion, by payment, respectively, of
a sum of money equal to that which each would normally have earned
as wages during the period from the date of his discharge, and with
respect to J. L. Ivers, from the date of his demotion, to the date of
such offer of reinstatement, less the amount which each has earned
during that period; I
c. Withdraw all recognition from the Allied Chemical Workers'
Association as representative of any of its employees for the pur-
pose of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or conditions
of work, and disestablish the Allied Chemical Workers' Association
as such representative;
d. Post notices in conspicuous places throughout its plant wherein
its employees are engaged, stating (1) that said Allied Chemical
Workers' Association is so disestablished, and that the respondent
will refrain from any such recognition thereof; (2) that the respond-
ent will cease and desist in the manner aforesaid; and (3) that such
notices will remain posted for a period of at least thirty (30) consecu-
tive days from the date of posting;
e. Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this order what steps
the respondent has taken to comply herewith.