Armour Fertilizer Works, Inc.

National Labor Relations Board - Board Decisions

Jan 4, 1943

46 N.L.R.B. 629 (N.L.R.B. 1943)

III the Matter of ARMOUR FERTILIZER WORKS, INC., A CORPORATION,
ARMOUR AND COMPANY OF ' DELAWARE , A CORPORATION , ARMOUR AND
COMPANY, A CORPORATION , AND INDEPENDENT ORGANIZATION OF
ARMOURS EMPLOYEES and INTERNATIONAL UNION OF MINE . MILL AND
SMELTER WORKERS AFFILIATED WITH C. I. O.
Case No. C-9311.Decided January 4, 1943
.Jurisdiction : meat products industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: questioning employees regarding their
union activities ; statements discouraging to membership in union ; assistance
in circulation of anti-union petition ; posting of notice warning supervisors not
to interefere in union activities ineffective to "neutralize" previous anti-union
conduct where subsequent to notice supervisors engaged in further acts of
interference
'Company/-Donunated Union: charges of, dismissed, when,employer's attempts to
remain neutral were not abrogated by its failure to retard organizational ac-
tivities of certain supervisory employees because of its reliance upon advice
and agreement of Board agent; and absent the consideration of such activities
remaining portion of record was insufficient to sustain charges.
Discrznunation: lay-off, and refusal to renistate three employees because of union
membership and activity.
Remedial Orders : cease and desist unfair labor practices; reinstatement and
back pay awarded
Practice and Procedure : settlement agreement no bar to consideration of events
occurring prior thereto where Company engaged in unfair labor practices
subsequent to execution of agreement.
DECISION
AND
ORDER
On August 27, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices ,
and recommending that they cease and desist therefrom and take
certain affirmative action as set forth in the copy of the Intermediate
Report annexed hereto. Thereafter, the respondents filed exceptions
to the Intermediate Report and a brief in support of their exceptions.
During the hearing, the Trial Examiner ruled upon various mo-
tions and upon objections to the admission of evidence. The Board
46 N L R B., No 76
629
630 DECISIONIS OF NATIONAL LABOR RELATIONS BOARD
has reviewed the rulings of the Trial Examiner and finds that no,
prejudicial errors were-committed. The rulings are hereby affirmed.
Pursuant to notice, a hearing for the purpose of oral argument was
held before the Board on October 27, 1942, at Washington, D. C. The
respondents were represented by counsel and presented argument:
The Independent and the Union did not appear. The Board
has considered the Intermediate Report, the respondents' exceptions
and brief, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations made by the, Trial Exam-
iner, with the exceptions and qualifications noted below::,
A. Alleged domination b f the Independent
The Trial Examiner found that the respondents ; were chargeable
with the anti-union and pro-Independent statements and activities of
various shift foremen. It was not unreasonable, therefore, that he
should conclude that the respondents had dominated and interfered
with the formation and administration of the Independent. We do
not agree with his conclusions, however, for other reasons. At the.,
very outset of its negotiations with the respondents, the Union in-
sisted upon the right of Simms, a shift foreman, to engage in unre-
stricted activity on its behalf, notwithstanding the respondents' valid
protest that they might be deemed responsible for the acts and state-
ments of shift foremen. At the insistence of the Union, the respond-
ents reluctantly agreed that shift foremen be permitted to engage in
union activities and, accordingly, restricted the language of the notice,
posted on April 8 wherein "foremen" were instructed to refrain from
conduct tending to encourage or discourage union activity.1a On May
-7) 1941, a representative of the Board affirmed the understanding be-
tween the Union and the respondents, and permitted shift foremen
to vote in the consent election held on that date. In reliance upon
the aforesaid understanding the respondents refrained from censor-
ing the union activities of the shift foremen until October 1941, at
which time, apparently relying upon a then recently issued decision
of the Board," they promulgated a rule requiring the shift foremen to
desist from union activity under penalty of demotion to non-super-
1 The name of William A Baker is inadvertently included in Section 4 of the Conclusions
of Law in the Inteimediate Report We treat this patent error as corrected by striking
said n ame from Section 4 of the Conclusions of Law.
'a Dr Pennington, a Federal conciliator Rho was present at the conference between the-
Union and the respondents on April 8, 1941, also expressed an opinion in support of the
Union's contention that shitt foremen were eligible to participate in union activities
2Matter of Marshall Field & Company and Department Store Employees Union, Local'
291 of United Retail, Wholesale and Department Store Employees of America, C. 1 0.,
34 N I. R B. 1; Matter of General Motors Sales Corporation (General Motors Parts
Division ) and International Union, United Automobile Workers of America, Local 216,
C. 1 G, 34 N. L R B 1053 See also Matter of The Sherimn-Williams Company and.
Chemical Workers Union No 22215, American Federation of Labor, 37 N L. It. B 260.
ARMOUR FERTILIZER WORKS, INC. ' 631'_
visory positions. We agree with the, Trial Examiner that the' shift
foremen are, clearly, supervisory employees whose interference with,
the self-organization of subordinate employees is attributable to the
respondents. However, the respondents herein were induced, iii part-
by our agent, to believe that they could not legally restrict the orgafli-'
zational activity of supervisors of Simms' rank. Since the respond-
ents' failure to maintain neutrality in this respect was due in sub-
stantial measure to the advice and agreement of a Board agent, we are
of the opinion that it would not effectuate the policies of the Act to
make findings of violation of the Act, or to issue an order against
the respondents, based upon the conduct of the shift foremen prior,
to October 1941.3 We shall, therefore, not consider the activities of
the shift foremen in determining the issue as to the respondents'
alleged domination of the Independent.
Excluding from consideration the conduct of certain shift foremen•
in promoting the Independent, we find the evidence insufficient to
warrant adoption of the Trial Examiner's finding that the respond-
ents dominated and interfered with the formation and administration
of the Independent. Although one of the Independent petitions was,
placed on Superintendent Sewell's desk, situated in an ordinary em-
ployees' dressing room, there is no evidence as to how long the petition,
remained there, that Sewell knew it was there, or that he had assisted
in its circulation.' Again, there is some testimony indicating that
the respondents, as a means of enhancing the prestige of the Inde-
pendent, granted wage increases and installed toilets and water coolers.
at the request of the Independent at a time when they had purportedly
declined to recognize or deal with either the Union or the Independent
until one of said organizations should be certified by the Board. This
testimony, however, is vague and unconvincing.4 Other evidence indi-
cates that the wage increase was made effective prior to the Independ-
ent's alleged request therefor and for business reasons wholly uncon-
nected with the employees' organizational activity.5 Under the
' We have heretofore had occasion to state our view that the effective administration of
the Act requires that the Board' s agents have the respect and confidence of labor organi-
zations and employers with whom their work brings then in contact , a'nd that under normal
circumstances repudiation of agreements entered into and relied on in good faith necessarily
iinpails'such respect and confidence See Matter of Shenandoah-J ives Mining Company-
and International Union of Mine, Mill if Sinelter Workers, Local No. 26, 11 N L R B.
855; also cases cited in footnote 8, infra.
Tai kur =ton testified that Kinzer told him "that the Independent got the 21/2-cent raise,
water coole.s and lockets, and I would say toilets," adding, "but he didn't put it that way."
[Italics supplied ] with respect to the installation of the toilets and water coolers,
Parrish testified that lie "lust told him [Mitchell, assistant superintendent] we wanted
some hind of toilets and some water coolers or some way to keel) our water fit to.drmk
out theie" When questioned as to whether he was acting as a representative of the
Independent when he made the foregoing request, Parrish testified, "Well, I don 't say that
I did . . I lust don't remember"
'As the Trial Examiner found, the wage inciease had been under consideration since
the middle of May 1941, and, as the evidence further shorts , it was withheld until after
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances, we are not persuaded that the aforesaid wage increase
and other benefits were granted as a measure of support to the
Independent.
Although we find below that the respondents evinced hostility
towards the Union by the anti-union statements and conduct of cer-
tain supervisory employees, other than shift fbremep, in view of all
the circumstances here present, we are of the opinion, and find, that
such activities afford an insufficient basis upon which to conclude that,
the respondents dominated, interfered with, and contributed support
to the Independent. We shall accordingly dismiss the allegations of
the complaint relative thereto.
B. Interference , restraint , and coercion prior to, the settlement
agreement of November 26, 1947
For the reasons stated above , we hereby reverse the Trial Examiner's
finding that the respondents , by the anti -union statements and conduct
of their shift foremen, interfered with, restrained , and coerced their
employees . However, we find, as did the Trial Examiner , that both
before and after the respondents posted the notice of April 8, 1941,
assuring their employees that they were free to engage in union activ-
ities without fear of discrimination , general foremen manifested hos-
tility towards the Union in violation of the Act . Thus, prior to the
posting of the notice and several days after Paul Ballard was laid
off on March 27, 1941, Turner Bolton , general foreman of the wet
rock department ,, questioned Ballard as to why he joined the Union
and suggested that he could return to work within the next day or so
if he withdraw his membership application card therein . On or about
April 5, Bolton similarly questioned Howard Hamm,' a member of
the negotiating committee , as to whether he had not been "satisfied"
before lie joined the Union. After the respondents had posted the
notice and 'prior to the consent election on May 7,' 1941, Howard
Kinzer, night general foreman , advised James Wade that he would
not join any labor organization . On April 14 , 1941, W. L. Crawford,'
track foreman at the Peerless mine, on two separate occasions that
clay called together the men working under his supervision so that
opponents of the Union might persuade ' them to sign the anti-CIO
petition , then being circulated. Finally, while the afore -mentioned
petition was being circulated , 'Ozro Redding , general foreman of the
consultation with a representative of the Board in June . In support of the respondents'
contention that the highly, competitive market for common labor had forced its consider-
ation of a wage increase , the evidence shows that %arious companies in the respondents'
vicinity had increased their basic wage rates in May and June of 1941 from 3 to 7 cents
per hour
0 The effect of the settlement upon the unfair labor practices committed by the respondent
prior to November 26, 1941, is hereinafter discussed.
1
ARMOUR FERTILIZER WORKS, INC. 633
acid plant, summoned Shift-Foreman Harden Bryant, and directed
him to advise the men under his supervision that they did not have
to join the Union and would be taken "care of" if they did not do so.
The respondents contend in their brief, however, that any of the anti-
union statements made bylsupervisory employees, prior to the posting
of the notice on April 8 were "completely neutralized" by such notice;
and with respect to any anti-union statements or conduct of super-
visory employees occurring subsequent to the notice, they contend that
the employees neither believed that such statements and conduct
reflected the attitude of the respondents, nor were they influenced or
coerced thereby into refraining'-from becoming or remaining members
of the Union. While it is true that numerous employees testified, on
cross-examination by the respondents' counsel, that they were not
affected by or conscious of any interference, restraint, or coercion from
the acts and statements complained of, the Board has repeatedly held
that it is immaterial that the proscribed conduct does not produce
the desired result, and that the invasion of the field of union activity
which the Act reserves as a matter of right to the employees is in
itself an unfair labor practice., As for the notice, if the respondents'
supervisory employees had refrained from acts of interference after
its posting, the respondents' contention that previous anti-union con-
duct was "neutralized" thereby might have merit. However, the
respondents' supervisory employees did not so refrain, and to say,
as the respondents suggest in their brief, that the employees "should
have regarded Mr. King's notice to the exclusion of these words
and acts of mere foremen," would be to disregard realities. The
coercion and intimidation inherent in statements and conduct such
as are referred to above, cannot be dissipated by well-meant procla-
mations of neutrality whose 'ineffectiveness' is demonstrated by the
disregard accorded them.,,
'Matter of Montgomery Waid and Company and Warehouse Employees' Union No.
20,297 affiliated With the A. F. of L, 17 N. L R B. 191, enf'g N L. R B. v. Montgomery
Hood & Co , 115 F (2d) 700 (C C A 8), and subsequent cases.
8In Swift & Company v. N. L R B, 106 F (2d) 87 (C C A 10), enf'g as modified
Matter of Siotft if Company, a corporation and Amalgamated Meat Cutters and Butcher
Workmen, of Sortlt America, Local No 611l, et al, 7 N. L R. B. 269, the court disposed
of a similar defense, stating
While the evidence showed that Middaugh , the plant manager , and Young, the plant
supeiinteident, repeatedly earned against violations of the National Labor Relations Act
and solicitation of union membership on petitioner' s premises during working hours, they
took no effective means to stop repeated violations of the Act Furthermore, with respect
to the acts of the supervisory foremen, the doctrine of respondeat superior applies and
petitioner is responsible for the actions of its supervisory foremen, even though it had no
actual participation therein
See also N L R 13. v The A S. Abell Co, 97 F (2d) 951 (C C. A 4), enf'g as
modified Matter of The A S Abell Company, 'a corporation, and International Printing and
Pressmen's Union, Baltimore 13ranc7t, Baltinioi e ll'eb Pressmen's Union, No 31,5 N L R B
614, Titan Metal Manufacturing, et al . V N L R. B, 106 F (2d) 254 (C C. A 3), enf'g
Matter of Titan Metal Manufacturing Company and Federal Labor Union No. 19981,
5 N L R. B. 577, Intesrtational Association of Machinists v. N L R. B, 311 U S 72,
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The settlement agreement of November 26,19 .11; interference, coer-
cion, and restraint occurring thereafter
The Trial Examiner found that since the respondents had engaged
in unfair labor practices after November 26, 1941 , the consent election
agreement executed on that date,in settlement of any unfair labor prac-
tices committed by the respondents prior thereto , did not operate as a
bar to the consideration of the events preceding such agreement. We
concur in such finding .9 With regard to the unfair labor practices
committed by the respondents after November 26, 1941, however, we
find, contrary to the Trial Examiner ,, that the respondents did not
discriminatorily apply the rule prohibiting the posting of all union
literature, which was promulgated shortly before the consent election
held on December 3 , 1941. While the evidence shows that, as found
by the Trial Examiner , Kinzer, night general foreman , violated the
posting rule by permitting several anti -union handbills to remain posted
in the acid plant shortly before the December election , it also appears
that literature was scattered and posted in the plant by the Union at
approximately ' the same time , some of which remained posted until
after the election. We also find that the statement made by Shift-
Foreman Hubert Harris to George Russell shortly before the election
was not violative of the Act . We reiterate , however , our adoption of
the findings of the Trial Examiner that the statements made by Super-
intendent Sewell to the men employed at the Peerless Mine on the
eve of the second election , and by Shift -Foreman Hubert Harris 11 to
J. H. Frey several days before the election were coercive and constituted
a' violation of the Act.11
aff'g 100 F ,(2d) 29 (App D C ), enf'g Matter of The Serrick Corporation and International
Union, United Automobile Wor9,ers of America, Local No 419, 8 N L. R B 621;
N L -tt B v. Aintree Corporation , decided November 12, 1942, (C C A 7) enf'g Matter of
Aintree Corporation and International Ladies' Garment Workers' Union, Local No 373,
affiliated with the American Federation of Labor, 37 N L R B 1174; II J Heinz Co v.
N L R B, 311-U S. 514, aff'g 110 F (2d) 843 (C. C A. 6), enf'g Matter of H J Heinz
Company and Canning and Pickle Workers, Local Union No 325, ai7iliated with Amalgamated
Meat Cutters and Butcher Workmen of Noi th Amci ica, American Feder ation of Labor,
10 N L R B 963
D Matter of American Cyanamid Co and United Phosphate Wor hers Union'No 22036,
affiliated with the A. F L., 37 N L. R. B. 579, 588, and cases cited in footnote 11 therein
See also Matter of Hope Webbing Company and Textile TPoikeis Organizing Committee
of the C 1 0, Local No 14, 14 N L R B 55 ; Matter of Wiclwne Brothers and Anialga-
Mated Ass'n of Iron, Steel & Tin Workers of No,th Ameiica, Lodge #1985, through
S. W. 0 C., affiliated with the C. 1. 0., 16 N L. R. B 316 , Matter of Sun Shipbuilding and
Dry Dock Co and Industrial Union of Marine and Shipbuilding Workers of A merica, 38
N L It. B 234; Matter of Houde Engineering Corporation and Inteinational Union,
U A W -C 10, Local 850, 42 N L R. B 713.
1° In view of oar previous finding in Sections A and B, above, that the respondents were
not accountable for the conduct of shift foremen, we here note that prior to the tune
1iairis made the above-ieleried-to statement to P+iey, the respondents had issued an ulti-
matum to all shift foremen that they either renounce their union membership or suffer
demotion In so doing, the respondents recognized and assumed responsibility for all
union activities engaged in by Harris, as well as the other shift foremen, occurring after
the issuance of such ultimatum
11 The record shows that on December 1, 1941, the respondents posted a notice warning
its supervisory employees to remain neutral in the forthcoming election. With regard to
ARMOUR FERTILIZER WORKS, INC. 635
E. Discrimination with respect to hire and tenure of employment
1. The discharge and suspension in March 1941, and the subsequent
demotion in November 1941, of Carl C. Simms
The Trial Examiner found that the respondents,, in 1I arch 1941,
discharged and suspended Carl C. Simms because of his membership
and activities in the Union. In discrediting the contention of the
respondents that Simms was discharged because he had concealed his
knowledge of the.bending of a tipple, the Trial Examiner finds that
'Simms was neither present at the time the tipple was bent nor did he
knowswho was responsible for the damage. A consideration of the
evidence, however, convinces us that the incident occurred on Simms'
shift and that he did know who bent the tipple, that he repaired it
only temporarily, and that the foreman on the, following shift, who
was forced to make more adequate repairs on the tipple, complained
to Redding. Furthermore, there is no -evidence that Redding had
knowledge of Silmns' union activities at the time Simms was discharged;
and Redding's testimony that he so informed Simms when the latter
accused Redding of discriminating against him was credited by the
'Trial Examiner. We find that Simms was not discriminatorily
`discharged or suspended by the respondents in March 1941.
The Trial Examiner found that the action of -the respondents in
demoting Simms in November 1941 was not discriminatory. The
Union filed no exceptions to this finding. We adopt the Trial Exam-
iner's finding in view of the fact that Simms insisted upon engaging
in union activity tending to interfere- with the self-organization of
subordinate employees, conduct for which the respondents could be
held responsible 12 .
2. The lay-off and refusal to reinstate Albert S. Ingrum and F. C. Hall
The Trial Examiner found that Albert S. Ingruin and F. C. Hall
were laid off on March 28, 1941, and thereafter refused reinstatement
because of their membership and activities in the Union. Contrary to
the Trial Examiner, we attach no significance to the alleged seniority
status of Ingruin, since the record reveals that the respondents followed
the effect of such notice upon the unfair labor practices which we have found the respondents
engaged in just prior to the election, the comments appealing in Section B, above, with
reference to the notice posted by the respondents on April 8, 1941, ale applicable
12 In adopting the finding of the Trial Examiner, we do not intend to approve the
respondents' policy of prohibiting union membership of their supervisory employees, insofar
as such policy might be applied in cases of individuals who, unlike Simms, had not engaged
in-conduct which the respondents may lawfully prohibit See Mattet of Union Collieries
Coal Company, Oakmont, Pennsylvania, and Mine Officials' Union of Auto ica (Inc ),
41 N L R. B 061, and cases cited therein ; Matter of Godcliaua Sugars, Inc and United
Sugar Workers, Local Industrial Union No. 1186, C I 0., 44 N L R. B 874; and cases
cited in footnote 2, supra.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no established seniority rules in laying off employees. The evidence
also shows, as found by the Trial Examiner, that the Tay-off of both
Hall and Ingrum was occasioned by a necessary and proper reduction
in operations, and since there is no satisfactory evidence that the
respondents were 'aware that these employees had joined the Union,
we find that the respondents did not discriminate against Hall and
Ingrum with respect to their dismissal on March 28, 1941. We do
concur, however, in the finding of the Trial Examiner that Hall and
Ingrum were discriminatorily refused reinstatement. At the time
Hall and Ingrum applied for reinstatement, the respondents were
aware of their membership in'the Union, and when their lay-offs be-
came the subject of discussion at grievance conferences between the
Union and the respondents, the latter promised to reinstate them be-
fore hiring new men when work became available.13 This the re-
spondents did not do, although the record shows that by August 14,
1941, the respondents had newly employed two common laborers in
the wet rock department where Hall and Ingrum were employed, and
that it hired thereafter six more such employees. We find that in
refusing to reinstate Ingrum and Hall on August 14, 1941, when work
became available which they as common laborers could perform, the
respondents were motivated by the union membership and activities
of these employees.
3. The lay-off and refusal to reinstate Frank Watkins
The Trial Examiner found that Frank Watkins was laid off on
March 29, 1941, and thereafter refused reinstatement because of his
union membership and activities. While we adopt- the finding of the
Trial Examiner in so doing, we give no weight to Watkins' relative
length of service in the respondents' employ since, as previously
pointed out, the respondents followed no established seniority prin-
ciples with respect to their employees. However, we find, as did the
Trial Examiner, that Bolton told Watkins that his "passing CIO'
cards" was responsible for his dismissal. Bolton's statement clearly'
reveals his discriminatory motive in selecting Watkins for lay-off,
rather than one of the other members of the clean-up crew who' were
retained. That Bolton would make so unguarded a statement to,
Watkins is not surprising, in view of his overt attempt, as set- forth
above, to bribe Paul Ballard, whom he had laid off on March 27, 1941,
into withdrawing from the Union in return for a promise of early
reemployment. .
"The respondents contended at the hearing that one of the reasons for refusing to
reinstate Ingrum was his allegedly abusive language to Kinzer at the time of the lay-off
The fact that at the above conferences the respondents did not raise this objection to the
Union 's request for Ingrum 's reinstatement further supports the finding of the Trial
Examiner that Kinzer's testimony, relative to his conversation with Ingrum , during which'
Ingi uni allegedly used abusive language , is not entitled to credence.
ARMOUR FERTILIZER WORKS, INC. 637
4.`The lay-off and refusal to reinstate Oscar Abernathy
The Trial Examiner found that the respondents had discrimi-
natorily refused to reinstate Oscar Abernathy following his lay-off
on September 4, 1941. In so finding, the Trial Examiner relied upon
the fact that following Abernathy's lay-off the respondents transferred
Rufus Collins, an employee who was junior in point of service to Aber-
nathy, from another department to the repair gang on which Aber-
nathy formerly had worked. Since the respondents admittedly con-
sidered Abernathy's relatively short service record in determining his
lay-off fi.om the repair crew, the Trial Examiner properly attached
more significance to the fact that Collins entered the respondent's-em-
ploy after Abernathy than could normally be accorded it under the
respondents' indefinite seniority policy. However, the evidence does
not establish that Collins was permanently assigned to the repair gang
or that he was transferred to fill a vacancy left by Abernathy. Nor is
there evidence to refute the testimony of W. L. Crawford, track fore-
man in charge of the repair crew, that Collins was a general utility
man who was customarily shifted to and from the repair crew as a
temporary need for his services there and in other departments arose.
Under these circumstances, ewe find that the respondents have not dis-
criminated with regard to the hire and tenure of employment of Oscar
Abernathy.,
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Armour Fertilizer Works,
Inc., Armour and Company of Delaware, and Armour and Company,
and their officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Union of Mine, Mill
Smelter Workers, affiliated with C. I. 0., or any other labor organi-
zation of their employees by, discriminating in regard to the hire and
tenure of their employees or any other term or condition of their em-
ploymei-it. ,
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise- of the right 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 or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
C
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
• (a) Offer to Albert S. Ingrum, F. C. Hall, and Frank Watkins, im-
mediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority and other rights.
and privileges ; •
(b) Make whole Albert S. Ingrum and F. C. Hall for any loss of
pay they may have suffered by reason of-the respondents' discrimina-
tion against them, by payment to each of them of a sum of money equal
to that which he normally would have earned as wages during the
period from August 14, 1941, to the date of the respondents' offer of
reinstatement, less his net earnings, if any, during that period;
(c) Make whole Frank Watkins for any loss of pay he ;,may have
suffered by reason of the respondents' discrimination against him,' by
payment to him of a sum of money equal to that which he normally
would have earned as wages during the period from March 29, 1941,
to the date of the respondent's' offer of reinstatement, less his net earn-
ings during that period;
(d) Immediately post notices to their employees in conspicuous
places throughout the Maury County plant, and m-iintain such notices.
for a period of at least sixty (60) days from the date of posting, stat-
ing (1) that the respondents will not engage in the conduct from which
they are ordered to cease and desist in paragraphs 1 (a) and (b) of
this Order; (2) that they will take the affirmative action set forth in
paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the
employees of the respondents are free to become or remain members
of International Union of Mine, Mill & Smelter Workers, affiliated
with C. I. 0., and that they will not discriminate against any employee
because of membership or activity in said labor organization ;
(c) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the re-
spondents have taken to comply herewith.
AND IT Is FuRTHFR oRDERrD that the complaint, insofar as it alleges
that the respondents, by dominating and interfering with the forma-
tion and administration of, and contributing support to, Independent
Organization of Armour's Employees, have engaged in unfair labor
practices within the meaning of Section 8 (2) of the Act, and by dis-
criminating in regard to the hire and tenure of employment of Carl C.
Simms, William A. Baker, and Oscar Abernathy and in regard to the
lay-off of Albert S. Ingrum and F. C. Hall, have engaged in unfair
labor practices within the meaning of Section 8 (3) of the Act, be, and
it hereby is, dismissed.
ARMOUR FERTILIZER WORKS, INC. 639
INTERMEDIATE REPORT
Mr William St?6ng, for,the Board
Mr. Pail E Blanchard, of Chicago, 111, Mr. Pi ide Towil inson, and Mr. R. L
Harris, Jr, of Columbia, Tenn, for the respondent, Armour and Company of
Delaware.
Mi C A Kennedy, of Columbia. Tenn, for the Independent.
Mr C A. Anderson, Mr. Van D Jones, and Mr. Hank Allen, of Bessemer, Ala,
for the Union.
STATEMENT OF 9 HE CASE
Upon an amended 'charge duly filhcl oii"or about May 29, 1942, by Interna-
tional Union, of Mine, Mill and Smelter Workers, affiliated with the C I O,'
herein called the Union, the National Labor Relations Board by its acting
Regional Director for the Tenth Region (Atlanta, Georgia), issued its com-
plaint, dated May 30, 1942, against Armour Fertilizer Works Inc.. heie!n called
the Fertilizer Company, Armour and Company of Delaware, herein called the
Delaware Company, and Armour and Company, herein called the Parent Com-
pany, the three corporations being herein at times collectively called the respond-
ents, alleging that the respondents, and each of them, had engaged in and were
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat 449, herein called the Act Copies of the complaint and
notice of hearing thereon were duly served upon each of the respondents, the
Union and upon the Independent Organization of Armour's Employees,' herein
called the Independent, a labor organization alleged in the complaint to be domi-
nated by the respondents
The complaint, as intended at the hearing, alleged in substance: (1) that the
Delaware Company is a wholly owned subsidiary of the Parent Company:
(2) that the Fertilizer, Company is a wholly owned subsidiary of the Delaware
Company, (3) that in 1941 the respondents instigated, dominated, interfered
with the formation and administration of the Independent, and ever since its
formation the respondents have dominated and interfered with its adnnnis-
tiation, and contributed financial and other support to it, by (a) soliciting,
urging, and persuading the eniployaes to organize the Independent, (b) insti-
gating, peimitting and participaitirig in the distribution, circulation, and posting
of anti-Union and pro-Independent literature and petitions by the employees,
(c) inducing the employees by threats, warnings, promises and grants of wage
increases to abandon their membership in the Union and to become members
of the Independent, (d) dealing with and making concessions to the inde-
pendent, while simultaneously refusing to deal with and rejecting the demands
of the Union, and (e) permitting the leaders of the Independent to use the
respondents' premises, on respondents' time, for organizational and other put'-
poses of the Independent; (4) that the respondents laid off Albert Iingrum'
i At the hearing, Board's counsel movell to amend the voiding in the caption to desig-
nate the parties as set foith above The motion was granted without objection
Pursuant to notice served upon the paities prior to the healing, Board's counsel, at
the opening of the hearing, inoied to include the Independent as a party iespondent The
motion was granted without objection The undersigned then advised counsel for the
Independent that he would ad]ouin the hearing to June 19, 1042, so as to give the Inde-
pendent as required by the Boaid's Rules and Regulations, 10 days notice of hearing
Counsel for the Independent waived the usual 10 days notice and stated that he would
be piepared to piocecd on the following morning, June 16, 1942. The hearing was then
adjourned, before any witnesses were called, until the following morning.
3 Also iefeiied to in the recoid as Albert Ingram
6 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and F C Hall on March 28, 1941, discharged William A Baker on March 29, 1941,
Frank Watkins a on April 1, 1941, Oscar Abernathy in July 1941, and Byrd C.
Owen ° on January 16, 1942, because, they engaged in. concerted activities with
other employees for the purpose of collective bargaining and other mutual aid
and protection; (5) that the respondents suspended C C. Swims on March 24,
and again on October 14, 1:)41,° and on October 29, 1941, demoted Srumns from
a supervisory to a non-supervisory position because he engaged in concerted activ-
ities with other employees for the purpose of collective bargaining and other
mutual aid and protection , and (G) that the respondents since 1937 have inter-
fered with, restrained and coerced the employees in the exercise of the rights
guaranteed in Section 7 of the Act by (a) urging the employees to withdraw from
the Union and- warning and threatening the employees not to become its mem-
bers or members of any other labor organization, (b) promising and granting
to the employees better jobs, increased wages, and other benefits if they would
refuse to become members•of or abandon their membership in the,Union, (c) ques-
tioning the employees as to the activities and internal affairs of the Union,
(d) threatening to close the plant if the employees persisted in seeking or
retaining membership in the Union, (e) refusing to 'members and organizers
access to employees living on company property, in connection with the business
of the Union, (f) interfering with the employees at elections held for the purpose
of selecting a bargaining agent for the employees, (g) disparaging and otherwise
interfering with the activities of. the Union, .while aiding in promotional and
organizational activities of the Independent, (h) interfering, with the employ-
ment and hire and tenure elsewhere of the persons laid off or discharged by the
respondents, and (i) discouraging membership, in the Union and encouraging
meinbehship in the Independent
On or about June 13, 1942, the respondents filed a joint answer admitting certain
allegations of the complaint as to the nature of their respective businesses, but
denying the alleged unfair labor practices The answer also averred that a cer-
tain agreement was entered into by and between the respondents, the Board,
and the Union, whereby the Board agreed to permit the Union to withdraw the
charges upon which the complaint herein is based, if the Union and the respond-
ents should enter into an agreement for the holding, under the auspices of the
Board, of a second consent election; and that since the agreement was entered
into by the respondents in good faith and'thc election was held on December 4,
1941, pursuant to, the said agreement, the complaint, especially those allega-
tions respecting the alleged unfair labor practices winch occurred prior to the
entering into of the said agreement, should be dismissed.
On June 10, 1941, the Independent filed an answer averring, among other things,
that the officers thereof "were advised by a representative of the National Labor
Relations Board that it would be best" for the Independent' to dissolve, that the
Independent did dissolve on August 20, 1941, and that from that day "the Inde-
pendent Organization of Armour's Employees has ceased to exist."
Pursuant to notice, a hearing was held from June 15 to July 8, 1942, at Columbia,
Tennessee, before the umlersigncd, the Trial Examiner duly designated by the
Chief Trial Examiner The Board, the Delaware Company, and the Independent
were represented by counsel. The Union was represented by three of its repre-
sentatives. All such counsel and representatives participated in the hearing.
Full opportunity to be heard, examine and cross-examine witnesses, and to intro-
I Also referred to in the record as Wes Watkins and Frank Wesley Watkins
5 Also referred to in the record as Boyd C Owen
° Counsel for the Board and for, the respondents stipulated at the hearing that on March
24, 1941, Simms was sdspended for 7 clays and on October 17, 1941, for 2 weeks
ARMOUR FERTILIZER WORKS, INC. " 641
duce evidence bearing upon the issues; was afforded all parties 7 At the conclusion
of the Board 's case, counsel for the Delaware Company made several motions to
dismiss certain portions of the complaint . The motions were denied . He then
moved to dismiss the complaint as to Watkins and Owen. The motion as to
Watkins was denied . The undersigned dismissed the complaint as to Owen
without prejudice ." At the conclusion of the hearing, counsel for the Board moved
to conform the complaint to the proof. Counsel for the Delaware Company and
for the Independent then moved to conform their respective answers to the proof.
The three motions were granted without objection . The parties were then afforded
an opportunity to argue orally before the undersigned . Counsel for the Board,
for the Delaware Company, and for the Independent participated in such oral
argument. The parties were then advised that they.might file briefs with the
undersigned - on or before July 23, 1942.° A brief was received from counsel for
the Delaware Company.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes, in addition to the above , the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE BESPONDENTS 10
Armour and Company is an Illinois corporation having its principal office and
place of business in Chicago , Illinois . It is engaged, and during all the,times
material herein has been engaged , in purchasing and slaughtering animals and
in the manufacture and sale of products therefrom . During its fiscal year ending
November 1, 1941, it purchased raw materials of the value of more than $100,000,000
of which more than 50 percent were purchased at points outside the States where
the animals were slaughtered or where the products from the slaughtered animals
were manufactured. During the same period, it produced and sold finished
products of the value of more than $100,000,000 more than 80 percent of which
were shipped and transported to points outside of the States where the animals
were slaughtered or the products from the slaughtered animals were manufactured.
Armour and Company of Delaware is a Delaware corporation, having its
principal office and place of business in Chicago, Illinois, and is a wholly owned
subsidiary of Armour and Company. It is engaged, and during ,all the times
material herein has been engaged, in the operation of approximately 300 branch
houses, many of which it owns, and which are located in nearly every State of
the Union. Through its' ,branch houses, it merchandises substantially all the
meat products of Armour and Company, as well as the dairy products which it
itself purchases or produces . It is also engaged in the manufacture and sale of
products closely allied to the meat packing business, such as fertilizer, fertilizer
materials, soaps, and leather. During its fiscal year ending November 1, 1941,
the value of the finished products which it produced and/or purchased and then
7 Armour Fertilizer Works, Inc. and Armour and Company were duly served with a copy
of the complaint , amended charge , and notice of hearing . Although these respondents
filed a joint answer with respondent Armour and Company of Delaware, they were not
represented at the hearing. Counsel for Armour and Company of Delaware stated on
the record that Armour Fertilizer Works, Inc. and Armour and Company did not intend
to appear at, or to take part in, the hearing.
"No evidence was introduced in support of the allegations that Owen was discharged
for the reasons alleged in the complaint.
° Upon the application of the Delaware Company the time to file briefs was extended
to and including August 3, 1942
10 The findings in this section are based upon stipulation entered into by counsel at
the hearing . ' ' I ' ' . '
504080-43-vol. 46-41
642` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resold amounted to more than $200,000,0001- more than 70 percent of which were
shipped to points outside the States of its purchase or manufacture. I ,
Armour Fertilizer Works, Inc., is a Delaware Corporation, having its principal _
office and place of business in Atlanta, Georgia, and is a wholly owned subsidiary of
Armour and Company of Delaware.,, It owns the property known as the Armour
Fertilizer Works, located in Maury County, Tennessee, which it leases to-Armour
and Company of Delaware. During the calendar year ending, June 30, 1941,
Armour and Company of Delaware produced and shipped from ,the Maury County
plant approximately 1O0,000 tons of phosphate. roek, 31 percent of which were
shipped to. points outside the State of Tennessee. During the, same period it
received and used in the operation of this plant approximately 37,000 tons of coal,
sulphite, salt, and other materials, 35 percent of which were shipped to the said
plant from points outside the State of Tennessee.
This proceeding is exclusively concerned with the employees'at the Maury.
County plant, and as hereinafter found in Section IV hereof, the relationship
between the three corporations referred to_ is such, and the officials of the Parent
Company have so acted, as to constitute the Parent Company an "employer" within
the meaning of that term as used in the`Act, of the employees here involved"
If. THE ORGANIZATIONS INVOLVED '
International Union of Mine, Mill and Smelter Workers, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting to mem-
bership persons employed at the Maury County plant.
Independent Organization of Aimour's Employees is an unaffiliated labor organ-
ization, admitting to membership persons employed at the Maury County plant.
-HI. THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the formation and administration of the
Independent; interference, restraint, and coercion
In the early part of 1937, the Union made an unsuccessful attempt to organize
the employees at the Maury County plant. On Saturday, March 22, 1941, at the
request of Carl C. Simms, then a shift-foreman in the acid plant, M C. Anderson
an international representative of the Union, visited Simms' home.' There
Anderson discussed with Simms and several non-supervisory employees, the
unionization of the plant. At that meeting, Simms joined the Union and imme-
diately became very active in promoting the organization among the employees;
It was mainly through his efforts that the majority of the employees signed ap-
plication cards for membership in the Union by April 8, 1941.
On March 24, Ozro Redding, the general foreman of the acid plant and Simms'
immediate supervisor, discharged Simms because, according to Redding's testi-
mony, Simms had not told him the truth when he asked Simms several days
previous'who had bent the tipple on the overhead crane. Simms had told him
he did not know. Redding further testified that he went to Simms' house and,
told Simms that he was' discharged because he had heard that day that Simms
knew who had bent the tipple and that Simms had tried "to cover up" the man
that Simms said to him, "That is not the reason you are firing me, you have
heard that, they are organizing a Union-clown there, and you think that I have
something to do with it and that is the reason that you are firing me. You are
wrong, I haven't had anything 'to do with it, I am not, even a member" ; and
11 See Bethlehem Steel Company v N. L. R. B, 120 F. (2d) 641 (App. D. C.).
12 Simms was then living in a "company house."
-ARMOUR FERTILIZER WORKS, - INC. ^ 1 '. 6433
that he (Redding ) replied, "That is all right if you are a member and if you
are having something to do with it, I don't know about that and I haven't heard
anything about it, your Union activities have nothing to do with my, firing you."
Simms did not testify and there is no contradiction , of Redding ' s testimony about
this conversation . , It is accordingly credited.
The next day Redding told William King and Baker Mitchell, the superintend-
ent and the assistant superintendent of,the plant , respectively , that be had dis-
charged Simms for not telling him the truth and that' Simms had accused Red-,
ding of discharging him for union activities . King then suggested to Redding
that, in view of that accusation , Redding revoke the discharge order and suspend
Simms, provided Redding could do so without impairing the discipline of the
men. - Later that day, Redding told Simms that he had decided not to discharge
him, but to suspend him for two weeks.'a -
On March 28 , the Union held its first public meeting , in a ball near the plant.
At this meeting 78 of the then approximately 300 persons employed at the plant
joined the Union. Simms attended and urged the men to join.
The following day, March 29, Mitchell , Redding, and Simms had a conversation
near the plant office and , according to Redding , the following took place :
Q. Tell what was said and done by each of you.
A. He walked up and said , "Well , Mr. Mitchell and Mr. Redding , you tried
to fire me because he thought I was 'organizing the Union . I wasn't then;
but I am now. We are going to present you with a contract -next week."
And Mr Mitchell - spoke up and said, "Carl , you are wrong .. Mr: Redding
didn't fire you because of your Union activities , but because you told him a
lie in regard to something that happened down in the plant". I don't believe
he said "Lie", but- he said "Because you didn't tell him the truth about
something that happened down in the plant."
And Mr. Simms spoke up and says, "Yes, he did try to fire me for that ;
Mr. Redding told me that Barkley Jones told him that I was organizing,that
Union and that is the reason I am firing you." '
And I said, "Carl, I didn't tell you any such thing," and he-said, "Yes,
you did," and I lost , my temper and I hit him.
Q. Why did you hit him?
A. Well , I just lost my temper , that is all . He disputed my word there
and at the time I saw him before that, he made a threat that he was going
to organize the Union and make me sweat , and his attitude toward me wasn't
what it should have been , I didn't think, since I was his superior.
Q. And so you did hit him?
A. Yes, sir. , -
Q And he resented it and hit back, I suppose? - !
A. No, he grabbed me.
Q.- What next occurred ? Nobody was hurt?
A. Nobody was hurt. - -
Q. What next occurred?
A. Well, some of the boys led me into the laboratory , and Simms , I don't '
know for sure where he went to ; the next time I saw him was at the office,
Q At Mr. King 's office? ,
A. At Mr. King's office.
Q. Was Mr. King at that fight or did he see that fight? •
A. I saw Mr. King a few minutes after the fight; he was there in the
crowd.
12 This suspension is discussed more fully in Section III B below. . -
644 DECISIONS I OF NATIOiVAL- LABOR RELArrIONS BOARD
After the above incident, King called Simms to his office. After dismissing
the quarrel between Simms and Redding , King ' asked Simms whether he thought
he could 'work peacefully with Redding. Simms replied that he could . ^ King then
sent for Redding, and, at King's request , Simms and Redding apologized to each
other and agreed to "let by-gones be by-gones."' Upon their leaving King's' office,
Simms told Redding that he would like to be reinstated immediately because he
was in financial straits. Redding thereupon reduced the suspension to one week
because Simms, as Redding testified , "showed a willingness there to cooperate
with us."
'On April 3, Sims and Anderson called upon King and told him that the Union
represented the majority of the men and that they would like to confer with him
regarding a contract .' King replied , that he would communicate with his ' su-
periors and advise Sims the outcome of that communication . The next day;
King'told Sims that-he and Mitchell would confer on April 5' with the Union's
representatives -at the office of Pride Tomlinson , one of the respondents' attorneys.
At this meeting 14 the Union agreed to submit its membership ' records to Tomlin-
son 'on April 8 for a check against the current pay roll. Pursuant to arrang-
ments, the parties met at Tomlinson 's' office on April 8 and , according to Tomlin-
son's testimony, the Union proved-to him that, it represented the majority. The
parties then agreed to meet again at Tomlinson 's office on April 14 for the purpose
of beginning bargaining negotiations . Tomlinson advised the Union's representa-
tives that C. F. Hagedorn , personnel director of the Delaware Company, would
be present to sit in-on the negotiations . Before the meeting concluded Tomlinson
.and King both stated that, in their opinion Sims, because of his supervisory posi-
tion, was not eligible to belong to the Union and that he should resign therefrom
and-cease his union activity around the plant: Anderson replied that Sims was
.eligible. That afternoon King posted notices in the plant which read as follows:
Reports or rumors 'have just come to , the local officials of the Company
that the Company'will employ or' discharge employees. either because they
'do or do not join , some labor or Union organization. -
I
The Company does not know whether any such representations have or
have not been made by any one, but in view of this rumor it has deemed
it proper to advise you that no employee of Armour Fertilizer Works, Inc.
-will be dismissed or employed by reason of his activities either for or against
any labor organization. The foremen are instructed to take no action or
be guilty of any act which might be construed as encouraging, or discouraging
organization of our employees in any labor union.
While the Union was entering into bargaining negotiations, the respondents,
on the other hand, were attempting to", discredit the Union in the eyes of the
employees. Thus, during the latter part of March or the early part of April,
foremen McBride and Troope,15 together with, employees 11urshel, Parrish, Leo
14 Snnms attended this and all subsequent meetings between, the.Union and the re-
spondents. -
Ss Troope testified he was not made a foreman until a few weeks before the opening
of the hearing herein and that prior thereto he was but a mechanic under the direct
supervision of Mitchell . The record , however, discloses that during all the time material
herein, Troope was vested with the supervision of the machine and blacksmith shops. He
gave orders, to those employed therein and was considered by them to be their boss.
Parrish, a welder in the machine shop, testified that during 1941, Troope was his "working
,boss." Mitchell also testified that during 1941, Troope was a foreman . - Mitchell prepared -
a schedule of the supervisors for the year 1941, which was received in evidence as Board's
Exhibit No . 2. On that schedule Troope's name appears as foreman of - the "Shop &
Machinery" department . . Furthermore , at the time of the bearing the personnel of the
e
ARMOUR FERTILIZER WORKS, INC. _ 645
Carey, e-and others, decided to form an inside union. Before, however, proceed-
ing with the formation of this union, and during the first two weeks of April, they
circulated a petition throughout the plant on company time, which bore the
heading, "We the undersigned are not, in favor of the C. I. 0." The circulators
of this petition received the active support of several of the shift foremen as well
as those of higher authority. In fact, at least 4 shift foremen signed the petition
and requested,those under their immediate supervision to do likewise. One of
the petitions 17 was taken to the Peerless mine's prior to April 14, and remained
on the desk of mine superintendent Sewell for several days. One witness testi-
fied,that he signed the petition at Sewell's desk, but not in his presence; other
witnesses testified that they saw the petition on Sewell's desk and later they., saw
it on a shelf in Sewell's office where it remained for about a week" , ,.
-During working hours on April 14, the day set for the bargaining conference be-
tween the respondents and the Union, W. L. Crawford,' the foreman at the Peer-
less mine, called his men together and told them that Parrish wanted to speak to
them. After Crawford left, Parrish said, according to the undenied credible
testimony of Oscar Abernathy :
"Men, ' I have been to 'Springhill and Springhill was solid," and he said,
"we don't know the CIO Union and since we have been getting along with-
out it, let's `sign this card ; we haven't got but 40'' minutes to get it back
to Mr. Pride Tomlinson's office."
The men. refused to sign the petition. About 20 minutes later, John Armistead,
who later became secretary-treasurer. of the Independent, appeared at the mine
and told Crawford that he would like to speak to,the men. Crawford again
called his mein together saying, according to Abernathy, "Men, here is another
man with another of them papers" and walked away when Armistead began
talking to the men. Several of the men then signed the petition, although
employee Abernathy urged them hot to do so.
While the petition was being circulated the respondents' animus towards
the Union was being brought more vividly to the attention of the employees.
Shift Foreman Bryant testified that several weeks after'the Union started to
organize the plant, Redding sent for him and told him :
Go down and tell them that they don't have to join the CIO, tell the boys
they don't,have to join the CIO, if they,didn t join it the company will take
care of them., -
machine and blacksmith shops was the same as it wasI throughout 1941. The' under-
signed finds that, during all the time material herein, Trobpe was a supervisory employee
and wasso-regarded.,' See International Association of Machinists v. N. L. R. B., 311
U. S. 72. , . ,
10 Parrish, a welder, and Carey, an electrician, were two of the highest paid employees.
Their duties took them throughout the plant „ •.; - -
17 The petition was in counterparts. It is also referred to in the record as the Anti-
C.I.O petitions •
18 At that time the phosphate rock was obtained from the Peerless mine., The mine
is a part of the Maury County plant, but about 12 miles distant from the plant proper.
11 Sewell's office was used as a locker and dressing room for the men who worked at the
Peerless mine. Sewell testified that he did not see the petition either:on his desk or in
his office. The undersigned finds that the petition remained in Sewell's office as testified
to by the witnesses, other than Sewell,,aiid that Sewell knew it was there
' 20 In its brief counsel for the Delaware Company conceded that King;' Mitchell, Redding,
Sewell,' W. L. Crawford, P. 'T. Bolton, and William Cranford ."not only had the right
to direct work and give orders'but the right to hire'and fire: Thus,',any remarks or action
by them, of any of them, coming within the prohibition of, the, Wagner Act, would
undoubtedly be an unfair'labor practice."': 1 1 , -
646' DECISIONS -OF ' NATIONAL LABOR RELATIONS BOARD
'Bryant further testified that he immediately told the-15 men under his super-
vision-wliat Redding had instructed him to tell diem. Employees Austin Harts-
field'-and Hiram Scroggins testified, that during the early part of'April, their
`shift-foreman, Barkley -Jones, told them- to'see Redding and to apologize to him
for their joining the Union and ask him to forgive them for joining. Neither
of them, however, did as Jones requested. A former employee, named William
Stanley Kelley,21 testified that he joined the Union in March and that about a'
week or two later Jones said to him, and the seven or eight other men in Jones'
gang that all those who "wanted to stay -there had better go to Mr. Redding and .
apologize to him" for joining the Union. Kelly'further testified that pursuant
'to the suggestion of Jones, he, later that day, told Redding that he had joined
the Union and was sorry that he did so, and that he would immediately resign
therefrom. Redding replied,' according to Kelley, that if that was the way' he
"felt about it to just go ahead and work like the rest 'of them." Kelley also
testified that thereupon he "didn't go any further with" the Union. • Redding
and Jones denied the statements attributed to them by Scroggins, Hartsfleld,
and Kelley. Jones admittedly was very active ih defeating' the ' organizational
=activities, of the Union 22 • Redding, while denying that he did anything to im-
pede the Union's efforts to organize the plant, did, in fact, as will be shown
below,; frustrate its, progress: The undersigned finds that the testimony of
Scroggins, Hartsfield, and Kelley to be substantially in accordance with the
facts.
' An employee named Paul Ballard testified that he joined the Union soon after
it started its 1941 campaign and that shortly thereafter he was laid off by
Turner Bolton,22 the general foreman of the wet rock department ; that several
days later he went to the plant commissary 24 to' purchase some gasoline and
that there he met Bolton and the following conversation ensued between them:
"When you got time, I want to talk to you." And I says, "All right, sir."
And I walked on in the commissary and I come out and he was sitting on
the porch waiting for me.
And he says, "Paul," and I says, "Yes, sir," he said, "What did you want
to join that Union for?" and ,I says, "Well, I figured I was on the biggest
side."
And he says, "Well, if it had been the AF of L, why, I would probably
have been in favor of it, but that, I haven't got any use for it."' He said,
"You are going to a meeting tonight, aren't you?" And I said, "Yes, sir,"
and he said "Why don't you go down and withdraw your card and go back
to work on Thursday?" And I said, "No, sir, if you want me to go back
to work on Thursday; I will go back, but I can't withdraw, my card." And
he says, "Go on back to work and study about it."
Bolton, when questioned by respondents' counsel regarding this conversation
with Ballard, testified as follows :
Q. Was Paul Ballard recalled? - '
X. Yes, Sir.'
Q. Do you kllow•about how long he was laid out?
2% Also referred to in the record as Stanley Kelley.
22 The uncontradicted evidence shows that Jones was very active in the formation of
the Independent and on many occasions during the initial stages of the Union's 1941 drive,
he offered to, bet the men under his supervision that the Union could not organize the plant.
22 Also referred to in the record as P. T. Bolton.
21 The commissary sells merchandise to the employees and also to,the general public.
f ARMOUR, FERTILIZER WORKS' INC. . 647
A. No,- sir; I don't, but not very long. Four of them were laid off at that
time.
Q.. He, says that you said to him at that time, "Paul, why did you join the-
CIOT" He said that you told him that you would be in favor of the
AF of L, but not the CIO. Is that true?
A. I don't remember ever saying that.
Q.. Do you recall asking him any questions about it?
A. Not as I remember.
Q. Did you ever talk to any man about the Union?
A. No, sir.
Q In any conversation that you may have had with them of any,nature?
A. Oh, I may have joked some of them in the beginning about it; I
might have said something in a joking way that I don't recall, or who to.
The undersigned finds that the above conversation between Ballard and Bolton
-took place substantially as testified to by Ballard. , ,
Employee Howard Hamm, on or about-April 5, 1941, asked Bolton to be per-
mitted, as a union representative, to attend a conference in Tomlinson's office.
Before granting the permission, Bolton ,asked Hamm if he had not been satis-
fied with conditicros before.the Union began organizing the plant.
Other supervisors also expressed the respondents' opposition to the Union
during.the.latter part of March and the early part of May 1941. Thus, Howard
,Kinzer, night general foreman, admittedly, during working hours, started a
conversation with an employee named James Wade about unions in general and
then stated to Wade "anybody could do as they liked to, but that he wouldn't
-jine (sic) no organization, CIO or no other one." Shift foreman Billy Gray
during March, April and May 1941 admittedly made many anti-union state-
ments to the men in his department. He also admitted saying to an, employee
named Thomas Jarratt that he did not think that any "full blooded American
could belong to the CIO." These disparaging remarks of the supervisors forci-
bly brought to the employees' attention that the respondents were not in favor
of any union coming into the plant.
Pursuant to arrangements made on April 8, and confirmed on April 11, by
letter from Tomlinson to Anderson, the Union's representatives went to Tomlin-
son's office on April 14. Upon their arrival, they met Parrish and an employee
named Weldon in Tomlinson's reception room. When Tomlinson requested the
.Union's representatives to step into his private office, Parrish and Weldon also
'went in. Anderson then protested the presence of Parrish and Weldon. Tomlin-
son replied , "Well, these men are employees, and we will find out what they
want." Thereupon, Parrish presented to Tomlinson the petition headed, "We, the
undersigned, are not in favor of the CIO." After examining the petition with
King, Tomlinson said he was uncertain how to proceed further with the Union
because the petition contained "a considerable number of names that had
appeared upon the CIO" membership list submitted to Tomlinson on April S.
Although the original intentions of the parties had been to enter into bargaining
negotiations at this meeting, the Union's representatives were, at the outset,
presented with a letter which Tomlinson had previously written to the then
Regional Director of the Tenth Region, but had not mailed. Therein Tomlinson
stated that he had checked the membership records of the Union against the
April 3 payroll and found that the Union represented the majority of the employ-
ees. The letter then concluded as follows:,
As we understand the rulings of the National Labor Relations Board these
receipts and application cards may be used as a basis for determining whether
or not the majority of the employees have elected to bargain collectively
648 DECISIONS OF• NATIONAL LABOR ' RELATIONS BOARD
and-have selected this Union as its bargaining agent. If our understanding
of this holding is correct, it would thus appear that the majority of the
employees of the plant of Armour Fertilizer Works in Maury County has
expressed a desire to bargain collectively with the employer and has selected
this Union as its bargaining agent.
The employer, however, does not desire to take-any action which might
be construed as selecting or' aiding in selecting, the" bargaining agent for
the employees who desire collective bargaining, but desire to submit the
facts above stated to you to the end that you will certify this Union as such
bargaining agent for the plant in Maury County in the event you deem the
facts herein submitted to you as sufficient evidence that such proposed
bargaining agent' is the choice of those employees.
Moreover, Hagedorn was not present, arid, therefore, according'to both Tomlinson
and King, they were not authorized to negotiate with the Union in his absence '
The only thing accomplished at the April 14 meeting was the writing of a letter
by Tomlinson to the said Regional Director, in the presence of all, outlining the
situation. I' ,. I I , • . '
On April 19, Anderson and the Union's committee again met with King and
Tomlinson at the ' latter's office.` .,There I the, parties discussed the grievances
of individual Union' members, especially the lay 'off of Simms .in the latter part
of, March. Nothing' definite was decided upon regarding the grievances. The
parties, however, during this meeting entered into a written consent election
agreement to be held upon the auspices of the Board.
Pursuant to the said consent election agreement; the Board • conducted an
election ' on May 7, 1941. The respondents' supervisors continued their anti-
union activities up to and including the day of election and thereafter. Cleveland
Kelley testified without contradiction, and the undersigned finds, that a.few days
prior to the election his shift foreman, Ralph Thomas, came ;to where he was
working and told him that the plant would close if the Union came, into the plant.
'Shift 'foreman Gray' admitted that shortly before the, election, he said to the
men who were then working in his department, "Well, .boys, you all don't know
what you are doing with this CIO9 I won't have anything to do with it either
-way, but-you should know what you are doing." • When questioned by respondents'
'counsel on direct examination, regarding a statementIemployee John- Frey testi•.
'fled to that Gray made shortly before the election, Gray testified as follows :
Q. He said that about the first election, on knowing"that Simms was
'trying to get the men to join the CIO, that you said that they better be careful
and better not do anything that interfered with their jobs. 'Did you say that?
A. 'I said, "don't let anything interfere' with your `job."
^• ,,
Q. Were you-talking to John Frey then?' '
A. I think the whole bunch were in there together. '
Q. Why did you mention it at all? • `
A. Well, he said something about it. '
Q. He said something about it?
A. Yes, sir.
Q. What did he say?
25 Hagedorn was in Atlanta; Georgia,' sick in, bed. King knew, prior to April 14, that
Hagedorn would not be present on that day, but', did not,iso advise',the ,Union.
' 29 This letter, together with letter written .by Tomlinson prior to the meeting, was
mailed by Tomlinson's office. Copies of both letters were given'to Anderson.
27 Mr. R. L. Harris, Jr., Tomlinson's associate, and assistant plant superintendent
.Mitchell were present at most of the conferences held in Tomlinson's office. For the
purpose of brevity, the undersigned is not mentioning the names of all those present at
these conferences. " '
ARMOUR FERTILIZER WORKS, INC. 649 ,
A. I don 't remember now what he said.
Q. And what , is it that you then said?
A. I just told him not to let anything interfere with his job.
Numerous other credible witnesses testified to numerous uncontradicted.•anti
union statements made by Gray prior to the election.
On the day of the election , Jones brought to the plant about 25 copies of the.
May 6 edition of the Daily Herald ; a daily newspaper published in Columbia,
Tennessee . He 'then proceeded to hand copies thereof to Redding , Bolton, and,
to a few employees who were members of the Union. About * 10 or . 12 copies
were then ' tacked up, in conspicuous places about the plant by those who were
against the Union, in such a fashion that only the news articles regarding the
election and about a strike called by an affiliate of the C. L. 0., could be read.'
According ' to Armistead , these newspapers were purchased by him and Jones S8
because they believed that a portion of the article which referred to the election,
and which reads as ' follows, was good "campaign literature" against the Union :
The election is the outgrowth of the organization of the Union in the plant
through the efforts of C.M. Anderson , Alabamian and long-time labor agita-
tor, the man who organized the strike in two Maury phosphate plants in 193''.'
Anderson , convicted • in Federal court at Chattanooga last winter for allegedly
being the "brains" of the gang that dynamited lines of the TVA in a Union
sabotage campaign , was sentenced to two years in federal prison but is
now out on bond ; pending disposition of his case on appeal. He has been
in this county several ' weeks, ' reorganizing and organizing in the phosphate
plants here and at Mt . Pleasant.
William Stanley Kelley testified that on the morning of the election , Jones tacked
up a copy of the Daily Herald on the commissary porch in the presence of King
and a group of employees ; that Simms , who was then on the porch , protested to
King about the posting of the newspaper ; and that King said to Simms, "I am
getting tired of you throwing up this Union up to me and I am getting damned
tired of it and I want you to get out and not say anything more." King denied
that he had any conversation with Simms about the posting of the newspaper on
the commissary porch . Regarding the posting and distributing of the news-
papers, Jones testified as follows :
Q. Did anybody stop you from that?
A. Yes, sir, I met Mr. King and Mr. Mitchell as I came out , they were
coming ' down in there, and Mr. Mitchell asked me what I was doing in
there at that time of the morning,-I was (not ) supposed to be-working,
and I told him that I was putting out some Heralds yesterday 's papers, and
he told me not to do that inside of the plant , and I didn 't tell him whether
I had or had not, and I just went on.
Q. Did you put up any more in the plant after that?
A. No, sir . I put one more up on the commissary porch . We went by
there and I tacked one up on the porch.
Q. What did you do with the others?
A. That is all.
Q. You had 25 of them?
A.'But we had already distributed them'out among the men before we met
them , and we had just one paper left.
Jones further testified that Simms and others were present when he tacked up
the newspaper on the commissary . In,view of all the circumstances surrounding
I The newspapers cost $1 . 25. Armistead paid $1 _of the cost and Jones 25¢. -
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the posting of the newspapers, coupled with King's animus for the Union and
Jones' eagerness to defeat the Union at the polls, the undersigned finds that
Jones tacked up the newspaper in King's presence and that King made the. above
quoted remark. .
After the Union's defeat at the polls, the supervisory employees continued their-
anti-union statements and activities. Thus, on the day following the election,
Gray stated to Richard Tarkington, a former employee and a watcher.for the,
Union at the polls, that since the Union was defeated "The best thing you can do,
is just to drop the thing and forget it." Likewise, Troope, Gray,- and Thomas,
-together with those who had started the circulation of the anti-C. I. O. petition,,
proceeded with the formation of the Independent. -Parrish, Carey, and others.
were permitted to go about the plant, during,working hours soliciting members.,
Some employees who 'were reluctant to join the Independent were advised by.
their foremen that their jobs were in jeopardy. Thus, William Stanley Kelley
testified without contradiction, and the, undersigned finds, that he joined the,
Independent when,Jones told him "the men who joined it would be taken care
of, would get to stay" at the plant. Employee George Russell testified, and ,the
undersigned finds, that shortly, after the election, Gray 'came up on the commis-
sary porch and said to a group of employees standing there:
"Well, boys, listen, you all can have a union among you all just.,as easy
as you 'can the CIO,, nothing. but all get together'and start one." He says,
"Let's all get together and start one," and he says, "You all, can have an
organization just like the CIO among you all men.", -
Russell further testified that Gray added that the Independent would secure` for
its members a 5-cent raise in salary, a week's vacation with pay, and free trans
portation from and to the plant." - '
About the middle of May 1341, Parrish and , Carey, -retained counsel- to perfect;
the, organization of the Independent. Counsel prepared a petition to be signed by.
those who wished to: join the Independent, a constitution, and bylaws. Those.
*ho hid been'active in the.circulation of the "anti-C. I. O. petition" took this
later petition around the plant, and with, the aid of some of the supervisors, soon-
obtained -the signatures of the majority of the employees Armistead testified
without contradiction, and the undersigned finds, that•he took one of the petitions
to the Peerless mine and placed it on Superintendent Sewell's desk.80 Besides
having- the petition signed,, the, Independent, through Foreman Thomas, had
application cards printed which he distributed,to the employees. Foreman Troope,
was also very active in,securiiig members'for the Independent. The•petition,
application and member cards,-and the other records of the Independent were
kept in the-cupboards in the nia,chine• shop. Ouly Troope and Parrish had keys
to this cupboard. -
On June 1 the Independent held its first membership meeting, which was at-
tended by about 100 employees, 'their families and friends. Foreman Troope
announced to those present that Parrish should be elected president. Thereupon,
by acclamation, Parrish was elected president. Likewise by acclamation, and at
Troope's suggestion, Carey and Ed Carrigan, a crane'operator, were elected vice-
president and secretary-treasurer, respectively " The meeting, after the adoption
of the constitution and bylaws, adjourned to June 28. - '
"Gray denied that he made the statements attributed to him by Kelley and Russell.
The undersigned does not credit his denials ,
30 The record does not show how long it remained there. Most of the men at the mine,'
liowever, Joined the Union on or before Jwie'4, 1941 - `
31 Carrigan was not present at this meeting The nest day he told Parrish and' Troope
that he did'not care to, act as an officer. Thereupon, Troope,' Parrish, and Carey appointed
Armistead secretary-treasurer. -
ARMOUR: FERTILIZER- WORKS, INC . 651
-On June 4, pursuant to arrangements made by King and Parrish, the Inde-
pendent's bargaining committee and its counsel, C. A. Kennedy, conferred at
Tomlinson's office with representatives of the management. There, the committee
exhibited to Tomlinson and King application cards and petitions which, accord-
ing to Tomlinson, showed that the Independent represented the majority of the
employees. The committee then demanded that the respondents recognize the
Independent as the exclusive representative of the employees and-to bargain with
it as such. Tomlinson, the spokesman for the respondents, refused to do so until
the Independent was certified by the Board. He, thereupon, suggested that the
Independent's counsel file a petition for certification. Kennedy agreed to do so,
provided Tomlinson would write a letter to the Regional Director of the Tenth
Region outlining what took place at that conference. On the following day,
Kennedy mailed to the Regional Director a petition for certification. On June 6,
Tomlinson wrote the Regional Director a letter informing him that he had
conferred with the Independent's representatives and that they submitted to him
proof; which be believed was sufficient, that the Independent represented the
majority of the,employees. The letter then stated:
Thus, the above referred to petition and cards constitute a majority of the
employees.
Under our interpretation of the decisions of the National Labor Board,,
those cards and petition- are proper guides for determining whether or not
the majority of the employees have expressed a desire for collective bargain-
ing and have expressed a desire that this particular organization.be its
bargaining agent. •
Unless our above mentioned construction of the decisions of the Labor
Board are erroneous, it would thus appear that a majority of the employees'
of the Maury County, Tennessee Plant of Armour Fertilizer Works, Inc.
has expressed a desire for collective bargaining with Armour' through the
Independent Organization of Armour's Employees as its bargaining' agent.
Mr. Kennedy, attorney for this Organization, has informed me that he has
filed with you a petition requesting certification of this Organization as the
bargaining agent and has inquired as to the employer's attitude with reference
thereto.
We are authorized by the employer, Armour. Fertilizer Works, to inform.
you as, to the facts 'above stated, and say to you that if you regard those facts
as sufficient evidence that such proposed bargaining agent is the choice of the
majority of the employees of the Maury County Plant, then we have no objec-
tion to its certification as such.
On June 17, the Regional Director wrote a letter,to,`Armour Fertilizer Works,"
which King turned over to Tomlinson. The letter is as follows:
Through clerical error the regular letter advising of the filing of a petition
was sent to you on June,10, in the matter of the petition filed by.the Inde-
penderit'Organization of Armour's Employees. We had overlooked'your letter
of June 9,2 ' and also the fact that an 8 (2) charge and an election protest had
been filed by the International -Union of Mine, Mill and Smelter Workers.
-All of, these matters have been assigned to Field Examiner Smith for
investigation. He will call upon you within a day or two.
Despite Tomlinson's letter to the Regional Director of June 6, that the respond-
ents would not recognize the Independent as the exclusive representative of the
employees until the, Board, certified the independent as such representative, Par-
This should read June 6. "
(552 DECISIONS OF `NATIONAL-LABOR RELATIONS BOARD
rish, as president of the Independent, sometime in the latter part of June, spoke
to Mitchell' regarding a general wage increase and the, installation of toilets and
water coolers at the plant. Mitchell promised-Parrish that he would confer with
King regarding Parrish's request. On or about June 27, a general wage increase
of 21/2 cents was granted, payable on July 3; and toilets and water coolers were
installed "sometime' during the summer." 63
On June 28, ' the' Independent held its second and last general membership
meeting, which` was attended by about 50 employees, their families, and friends.
At this meeting, Carey outlines what transpired at the June 4 meeting in Tom-
linson's office,' the filing of the petition for certification by Kennedy, and then
concluded his 'remarks by adding that' the organization' was "up against a stone
wall and couldn't go any further because they had not heard any further" from
the Board.' This meeting concluded with the announcement of a picnic to"be
Yield on July 4. ' ' •
After investigation and conferences with representatives of the respondents and
the independent, a Field Examiner of the Board prepared a statement which
Parrish signed and which was posted -in- the plant on or about August 20, 1941:
'The statement is as follows : -
The Independent Organization of Armour's employees has been dissolved as
of this day, August 20, 1941. ' • • ' -
INDEPENDENT ORGANIZATION OF ARMOUR' S EMPLOYEES.
By HERSHEL PARRIsH, President.
Although the respondents made no public announcement of the' Independent's
disestablishment, the Independent has not been active since the posting of the
August 20, 1941, notice.4 `
is King and Tomlinson testified that the general wage Increase was not given at the
Tequest of Parrish or, of the Independent. They stated that they had under consideration
since the middle of May the granting of a general wage increase, but hesitated to grant
2t for fear that, by so doing, the respondents would be charged with an unfair labor practice :
that they granted the increase only after being advised by the Field Examiner, who had
been sent to Columbia to investigate the charges filed by the Union, that they should "run
their own plant" the way they saw fit. While it is true that King and Tomlinson did
confer for a month or more regarding the wage increase, the undersigned finds that the
water coolers, toilets, and the general wage increases were given to the employees at
the 'request of the Independent. This finding is buttressed by the undenied testimony
of Tarkington, a credible witness, that Kinzer told him in June "that the Independent got
the 2' cent raise, water coolers and lockers, and I would say the toilets ..." and by the
sworn statement which Parrish and Carey gave to the Field Examiner on or about July 2,
1942, which reads in part as follows : - -
.. . and Mr. Parrish [president] also contacted the management for a salary raise
for everyone-he did this last week June 27, 1941, and through bargaining with Mr.
King and Mr. Mitchell of the company he secured a two and one-half cent raise per
hour for, all of the employees. He had asked for five cents, and was given half of
that amount. He did not just ask for our own members but went further and asked for
a raise for all the employees. '
Moreover , Mitchell admitted that some time in May or June , Parrish requested of him a
general wage increase and vacations with pay for the men. He testified, however, that
he did not transmit to King, Parrish 's request . Parrish testified , and the undersigned finds,
that sometime in June the following transpired :
Well, I went to the office after I talked to a bunch of the men at the shop, and they
said they were tired of fooling around and getting nothing out of it, and we being the
president of the Independent Union, they wanted me to go up there and talk to Mr.
King or Mr . Mitchell and see if I could get more money, and I went to Mr. Mitchell.
i Mr. King wasn't there, and I told him what the men had told me, and he said that
be would see what he could do about it, and sometime later we got, I believe, a 2%
cent raise. `
s4 The membership of the Independent was not consulted regarding the execution or
posting of this notice. . ••
ARMOUR FERTILIZER WORKS, INC. 653
Upon the entire record, the undersigned is convinced and finds that- the Inde-
pendent is the creature of the respondents and was brought into existence and
utilized by King and his supervisory force in order to forestall the organizational
activties of the Union. The contention of. the respondents, made, during, the
hearing and in their brief, that the Independent was the spontaneous result,of
the organizational, desires of the employees, is not supported by the record. On
the contrary, it is definitely established that the respondents were the impelling
force behind the Independent; in short, the respondents simply foisted the Inde-
pendent upon the employees as a device for supplanting the Union, which the
majority of the employees had freely selected as their representative. From
the activities found above, it is clear that the respondents initiated, supported,
and dominated the Independent, thereby effectively stifling the organization of
the Union and destroying the employees' freedom of choice and other rights
guaranteed by the Act.
In marked contrast with the respondents' attitude toward the Independent
was their conduct toward the Union. Employees were questioned, by, their super-
visors in regard to their membership in the Union, and were urged not'to-join or
to remain members thereof., ,In addition; the respondents' supervisors repeatedly
threatened to close the plant if the Union was successful in its organizational'
asefforts. As hereinafter, found, the respondents actually discriminated, against
number of union members for their affiliations with that organization, and in
numerous instances the supervisors disparaged the Union before their- employees.
The undersigned finds that by the foregoing acts the respondents have domi-
nated and interfered with the formation and administration of the independent,
and have contributed support to it, thereby interfering with, restraining, and
coercing the employees in the exercise 'of the rights guaranteed in Section 7 of
the Act. The undersigned further finds that the respondents, by warnings,
threats, and disparaging statements about the Union, and,by other acts, as found
above, have interfered with, restrained, and coerced the employees in the exercise
of the rights guaranteed in Section 7 of the Act.
On October 15, 1941, the Union's representatives again met at Tomlinson's
office with King, Mitchell, and others. There the parties conferred regarding
grievances, the March suspension of Simms, and the reinstatement of some of the
complaints herein 35 A second consent election and Simms' right to remain in
the Union were discussed. • Nothing definite was decided on regarding the griev-
ances presented, nor about the proposed election. Tomlinson and King, however,
stated that they would investigate the grievances and would communicate with
the Union at a later date. Again King and Tomlinson stated that Simms should
resign from the Union. Simms and the Union representatives again stated that
Simms was eligible for membership. Simms then stated that he had been
elected president of the newly-formed local of the Union. A few days later, Tom-
linson wrote the Union, in substance, that he and King had investigated the
grievances presented at the October 15 meeting, and found them to be without
merit.
On or about October 17, King requested Simms to come to his office. Simms
did so, but refused to remain when he saw ,Mitchell and Foreman Dunbar with
King. The next day King suspended Simms for 2 weeks.38
As a result of a series of conferences, and the exchange of numerous letters-
and telegrams by and between the Board's Regional Office,, Tomlinson, the re-
35 Several other meetings between, the parties were held, between April and October,
1941, at which the Union presented the grievances of Simms, some of the complainants here-
in, and others. At none of these conferences was the Union able to con'viuce Tomhnsom
and King that the Union members were being discriminated against.
20 This suspension is discussed in detail in Section III-B, below.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondents ' Chicago counsel , and the Union , an agreement was entered into on
'November 26, 1941, for the holding of another consent election under the auspices
of the Board . The election was-held on December 3.
` While the parties were negotiating for this second election, and when , as King
admitted , the possibility of the parties ' agreeing to an election become imminent
to him , he issued orders to Mitchell and the general foreman to remove from
the plant all union literature . King, however , as he admitted , did not notify the
shift foremen or the employees of this order.
On December 1, the day the Board's official notice of the second election was
posted in the plant , several hundred handbills were scattered about the plant de-
nouncing the Union . This handbill n read as follows :
TO ARMOUR EMPLOYEES
Help us keep the C. I. O. and lost time out of the pay envelope coming in.
We have been paid as high or higher wages as any other fertilizer plant- in
Maury County.
We don't want to lose any time this winter on account of strikes
We are getting as much in every way as the unionized workers of Mt. Pleas-
ant plants.
We have never lost a days work on account of strikes -
We don't like John L Lewis or Hitler.
We don't want to pay $110 a month to the C. I. O. to go to J. L Lewis.
We believe we have been given a fair deal.
We are going to vote against the
C. I. O. WEDNESDAY
Employee Ed McClaurine testified without ' contradiction , and the undersigned
finds, that, before the December election, he saw three of these handbills tacked
up in the acid plant, and that he observed Kinzer reading one of them and that
Kinzer did not remove it. Likewise, employee Henry Hartsfield testified without
contradiction, and' the undersigned finds, that just prior to the second election he
saw about 40 or 50 of these handbills in his department lying on a barrel where
the shift-foreman and the employees change their clothes, and that the handbills
"remained there an entire day. `Other creditable witnesses testified without con-
tradiction, and the undersigned finds, that these handbills appeared at the plant on
November 30 or December 1, and remained posted and scattered about the plant
until after the election. While permitting these handbills to remain in the plant,
Mitchell, Redding, Bolton, Dunbar and Kinzer removed all notices posted by the
Union. Employees Thomas Jarratt and Willie Jarratt testified, without con-
tradiction, and the undersigned credits their testimony, that about the time of
the second election they tacked up a few Union handbills in the plant; that,
shortly after, Mitchell instructed them to remove them, saying that if the plant
officials "wanted anything posted that they would post them "
On the eve of the second election, as testified to by an employee named John
Luster, Thomas Sewell, the general foreman of the Peerless mine, came into the
men's locker room and, in the presence of about 10 or 12 of the men who work at
the mine, said, "Boys, we are going to have another election tomorrow, the CIO
will sure go in this time if they do, we will be shut down in 30'days." Regarding
this incident , Sewell testified as follows: •
Ed Carrigan had about 500 of these handbills printed on November 29. That evening
be gave them to numerous employees for distribution in the plant.
ARMOUR FERTILIZER WORKS, INC . 655
Q..It has been testified, Mr. Sewell, that on the afternoon before the second
election, a remark was made by you in your office to this effect ; that you be-
lieved the CIO would win the election tomorrow, and that if they did the
plant would close within 30 days. Did you state that or in substance that?
A. Not on the afternoon before the election, but on the morning of the day
before the election
Q You did state that or in substance that? -
A. Something in substance that.
Q. Did you use or make any other explanation-did you' say the plant
will close within 30 days?'
A. No, sir, I did not.
Q Just what did you say ?
A I just-expressed my opinion, and my opinion was that the CIO would
win this election, and I was afraid if they did that they would close us down.
Q Did you say within 30 days?
A. I don't think I said any length of time ; I didn't say any length of time.
Q. How did it come up, Mr. Sewell?
A It was before work time and several men were in the office discussing
the election, and I was busy myself when they were talking, but after several
of them had expressed their opinion, I expressed mine.
Q You expressed your opinion?
'A. Yes, sir.
'Q. Did you initiate the conversation?
A. I did not.
Q. The men were in your office and were discussing it?
A. Yes, sir.
The undersigned accepts as correct Luster's version of what Sewell said to the
men on the day before the second election.
Employee George Russell testified, and the undersigned finds, that one after-
noon before the second election he met Shift foreman Hubert Harris in Columbia
and, after talking with Harris about the C. I. 0., the following ensued:
And he (Harris) went on and told that once he belonged in a union in Vir-
ginia, if I am not mistaken about it, and he said he didn't see where it bene-
fitted so much because there was so many extra dues, hospital dues and first
one thing and then another like that ; he says, "You make a hell of heap' of
money but you spend a heap of it into the organization."
`Employee Frey also testified that several days prior to the second election Harris
asked him whether he belonged" to the Union; that he replied he did not know ;
and that Harris then told him that he believed "this damn plant will close up if
it (the Union) comes in here."
Harris testified as a witness for the respondents He was not questioned,
however, about the statements attributed to him by Russell and Frey. The
undersigned finds that Harris made the statements attributed to him by Russell
and Frey.
The respondent Delaware Company contended at the hearing and in its brief
that the respondents should not be held accountable for the activities of the
shift foremen, because those shift foremen who were active against the Union
and supported the Independent were no more active than Simms was on behalf
of the Union. ' This contention'is not'supported by the recbrd. The activities
of the other shift foremen were not similar to those of Simms. Simms informed
the employees that the respondents were not in favor of the Union while, on the
other hand, the other shift foreman led the employees to believe that the respond-
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents were in favor of the , Independent 'and that, • therefore , it was more advan-
tageous that the employees 'become members of the Indepehdent : The credible
evidence shows that the shift foremen, other than - Simms; were carrying out the
orders and directions of and the policies laid down *by King, Mitchell , and Redding
and therefore the rdspondents ' are chargeable with the ' activities ' and statements
of these shift foremen. - '
The respondent Delaware Company also contended at the hearing and in its
brief that they entered into the second consent election agreement on November
'26, 1941, only after the Regional Director had' agreed to- dismiss all charges then
pending against the respondents , and that, therefore , the Board may not properly
consider any unfair labor practices to have been engaged in by the respondents
prior to November 26, 1941 . Under the circumstances of this , case, the under-
signed,cannot concur in this contention . It is plain that any understanding
reached was not understood by the parties to'be a bar to any determination by
the Board if the respondents immediately 'thereafter resumed their unfair labor
practices . The record 'is'clear, as found above , that the respondents , prior to
and after November 26, 1941, had engaged in unfair labor practices .' It is the
'Board 's "established practice not 'to give effect to a' settlement or compromise
of unfair labor' practices where an employer violates it 'or continues a course
of unfair labor practices." 88 Moreover ; in the ' Matter of Wickshire Brothers,80
the Board stated, "if the respondent had. engaged in further unfair-labor prac-
tices after the consent election, we would disregard the -consent-election
agreement . Any such agreement obviously contemplates that the employer will
not engage in any further unfair labor practices. If'the respondent 's conduct
after the consent election showed a continuity with its conduct prior thereto, we
would consider the whole of the respondent 's conduct in determining whether
the respondent had ,-engaged in unfair labor practices with respect to the
Association."
B. The suspensions and demotion of Carl C. Simms
Simms was first employed by respondent Armour and Company of Delaware
on March 12, 1937. On February 17, 1938, he was laid off On September 2, 1938,
he was rehired and worked continuously thereafter until he voluntarily quit
on December 19, 1941. Sometime in 1939 or 1940, he was made a shift foreman
in the acid department , which position he held until sometime during the week
ending November 5, 1941,'0 when he was demoted to a laborer . That Simms'
position as a shift foreman was one of supervisory authority is not open to
question . It was contended by the respondents , and while the Board's counsel
did not make the specific contention in Simms' case , he, did both contend and
prove that other shift foremen occupying the same status as Simms were pos-
sessed of supervisory authority . Accordingly it is found that Simms ' position
as shift foreman was one of supervisory authority. •
.As shown above, Simms was the guiding spirit and the leader of the Union's
organizational activities in the plant . It was mainly through him that, within
a few weeks after the Union started its 1941 drive, the majority of the em-
33 Matter of American Cyanamid Co. and United Phosphate Workers Union No 220,46,
affiliated with the A F of L , 37 N L' R B 579 , 588 See cases cited in footnote 11 therein.
"Matter of Wickwire and 4malgamated Ass'n of Wire, Steel and Tin Workers of North
America, etc , 16 N L . R.,B 316 See also, Matter of Ifoude Ennineering Corporation and
International Union, U A W -C. 10, L( cal 850, 42 N L R B 713
40 The record does not disclose the exact date when Simms was made a shift foreman, nor
does it show the exact date when he was d emoted.'
ARMOUR FERTILIZER WORKS, INC. 657
ployees became members. His leadership and activities soon became known to
'his supervisors. Redding became aware of them on March 24, 1941, 2 days after
Anderson met with 'Simms. As soon as Simms joined the Union,' he imme-
diately proceeded to'induce other employees to join.
Redding, according to his testimony;' questioned Simms'and several other shift
foremen' several days prior to March 24, as to what employee was responsible
for the bending of the tipple on the overhead crane ; that all the shift foremen
'told him that they did not know who was 'responsible ; that on March 24, Simmie
Harlan told him that Simms was the one on duty when the tipple was bent;
and that he thereupon discharged Simms because Simms -had not told him the
truth when he questioned him about the tipple. According to Harlan, who
'testified for the respondent, Simms was ,not present when the tipple was bent
and when he was informed of it, Simms, with the aid of several employees,
straightened it42 ' I
I . Redding testified' that Barkley Jones advised'him that the Union was active
again in the plant; that also that day Harlan told him that Simms was in charge
when the tipple was bent ; that he told Shift Foreman Bryant that he was
going to Simms' house and ' discharge him; that he also told Bryant that he
should discharge Bryant because Bryant had not reported to him'that' some of
the men had been shooting craps the past two Sunday nights instead of'work-
ing ; and that he went to Simms' house and had the conversation which is set
out in Section III A above. Bryant testified, "on Tuesday night93 after the cards
were brought out there' . . . ; the cards were brought out 'there on Saturday
night before and I think that he (Redding) thought I knew about-it, the CIO
cards; . . . and,I think he thought I had something to do with that." He
further testified that Redding told him that he was going to Simms' house and
discharge Simms and that Redding said that he should also discharge him be-
cause he "wouldn't talk and wouldn't tell him (Redding) nothing; and that he
(Bryant) was disloyal to the Company" because of the fact that he would not
talk. The events that occurred on March 24, as described by Redding, coupled
with the anti-union activities of the respondent as found above, lead the under-
signed to the conclusion, and he finds that Redding did not discharge Simms on
March 24 because Simms did not tell him the truth about the bending of the
tipple, but because of Simms' membership in and activities on behalf of the
Union.
As described above, Simms' discharge was changed to a 1-week suspension
without pay. Thereafter, and until Simms was demoted, Redding admittedly
followed Simms about the plant. The respondent introduced in evidence six or
seven memoranda prepared by Redding regarding incidents involving Simms'
alleged neglect of duty. No reports were introduced regarding any other shift
foremen or employees, although Redding admitted that other shift foremen were
guilty of neglect of duty. Redding stated that he followed Simms around and
made reports about him because Simms was arguing and fighting with the men in
order to induce them to join the Union. The credible' evidence shows, as found
above, that many shift foremen and non-supervisory employees were threatening
the employees with discrimination if they did not renounce their membership in
the Union, and that Redding was cognizant of some of these facts. There is no evi-
'1 Simms did not testify.
42 There is no evidence that Simms knew who bent the tipple , or that he inquired.
The record shows that, several weeks previous to this incident, the tipple had been bent
and the shift foreman in charge at that time strightened it, and the matter was never
reported to Redding.
11 The record shows that March 24, 1941, was on Monday.
504086-43=vol. 46-42
'658 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
-dence that any disciplinary action was taken against them. In-view of the fore-
going including the respondents' hostility to the Union, the discriminatory dis-
charge and lay-off of union members, as shown below, and King's knowledge that
.Simms was the leader of the union movement in the plant; the undersigned finds
that Simms was suspended in March 1941 because of his membership in and
activities on behalf of the Union, and that the respondents thereby discouraged
membership in a labor organization, and interfered with, restrained, and
coerced the employees in the exercise -of the rights guaranteed them in Section,7
of the Act.
At the October 15 meeting In Tomlinson's office, which was attended by repre-
sentatives of the management and the Union, Simms stated that he had been
lately elected president. of the newly formed local of the Union. On or about
-October 17, King, called Simius to his office Simms went and, when -he saw
Mitchell and Dunbar were with King, he refused to remain in King's private room
-unless King permitted him to bring an employee named William Vandiver with
him as a witness. King refused Simms' request, stating that he wanted to talk
to Simms privately. Simms then left King's office. On the following day, King
-suspended Simms for 2 weeks without pay. The undersigned finds that Simms'
refusal to talk with King was insubordination and that King's action in suspend-
ing Simms was not on account of union membership or activity, and the under-
-Signed will accordingly recommend that the amended complaint in this respect
-be dismissed.
On October 29, King, upon instructions of the respondents' counsel, posted the
following notice in the plant : -
To ALL SUPERVISORY EMPLOYEES OF Aii\IOUR FERTILIZER WORKS, INC., MAURY
COUNTY PLANT
During the present month the National Labor Relations Board has ren-
dered an opinion, deciding that an employer-can require supeivisory employees
to relinquish their supervisory status if such employees join a Union'
and insist upon retaining their Union membership. In accordance with this
holding, you are hereby informed that any supervisory employee of the
Maury County Plant who is a member of any Labor Union must either relin-
quish his membership in the Union or his status of a supervisory employee.
In the event such supervisory employee elects to continue his Union niein-
bership his employhient with the Company will not be terminated,'but he
will be relieved of his duties as a supervisory employee.
No employee of this Company will be dismissed or in any way discrimi-
nated against by reason of being a member of a Union; but he cannot be a
member of any Union and at the same time occupy a supervisory position
I
On the same day, King wrote Simms a letter along the lines of the above quoted
notice." The concluding paragraph of the letter reads as follows :
You are, therefore, hereby informed that you are given until 2 P. M Tues-
day, November 4, 1941, within which to advise me in writing as to whether
you elect to give up your membership in any Union or to relinquish your
supervisory position; and in the event I have not received such notice by
that time and wherein you have advised me that you have relinquished your
membership in the Union and do not belong to any, Union, you will then be
removed from your position as a supervisory employee but continue to occupy
the position of an employee in a non-supervisory capacity.
I" Simms was the only supervisor to receive a letter.
I
ARMOUR FERTILIZER WORKS - INC . 659
:Simms refused to relinquish his union membership and was, therefore, on or about
November 5, 1941, demoted to the status of a laborer in the acid plant, which job
.Simms held until he quit on December 19, 1941.46
It having been heretofore found that Simms' position as a shift foreman was
one of supervisory authority, his interests were such that they would lie with
the management and his acts would be acts for which an employer could be held
responsible. The respondents having given him his choice to relinquish either
his union membership or superA isory status and Simms having refused to
relinquish the former the undersigned is of the opinion that the action of the
respondents in demoting Simms was proper.40 Accordingly the undersigned will
recommend that the amended complaint in this respect be dismissed.
C. The discrimminatoty lay-offs
The amended complaint alleged that the respondent Armour and Company of
Delaware discriminatorily laid off Albert S. Ingruth, William A. Baker, and F. C.
Hall on March 28, 1941; Frank Watkins on March 29, 1941; and Oscar Abernathy
on September 9, 1941 Since the circumstances surrounding these lay-offs are
.different, they will be discussed separately.
Albert S. Ingruni, was first employed on October 17, 1940, and, after working
Sor about 17 days on the small picker belt in the wet rock department, he was
transferred to the dumping pit, where he remained until his lay-off on March 28.
'The, respondents' answer averred that Ingrum was laid off because "of the neces-
sary and proper reduction in forces and because [Ingrum's] services were no
longer needed due to changes in operation and business conditions," and that his
union membership and activities played no part in either his lay-off or the
respondents' refusal to thereafter reinstate him.
Ingrum joined the Union on March 24. On March 28, his shift foreman,
Alfonso Roberts, told him that he had been instructed by Bolton to lay him
off that night. After his shift ended that-night, Ingrum, according to his
testimony, had a conversation with Kinzer, and the following ensued :
"Mr. Kinzer, you are laying me off at this time of the year and I have
been farming and had no crop and no job" and I says, "It is throwing me
to the bad pretty much right now," and I says, "the Union is what is caus-
ing us all to be laid oft," and I had already seen. the names of some others
up at the commissary, names of some others that were being laid off ; and
I told him, "I am going to\take this up with the'Union and do what I
can to put it through, and see if I can't get my job back through the
,Union." And he says, "Well, when you do, you are, going' to be sorry
of it."
Kinzer, while not denying that he said to Ingium, in response to the latter's
statement that he would endeavor to obtain reinstatement through the Union,
"Well, when you do, you are going to be sorry of it," testified regarding this
conversation to substantially the same effect as did Ingrum. Kinzer added,
however, that Ingram used language which he (lid not care to repeat, and that
Ingrum also said, "At the present time, I don't belong to the CIO, I am going
to join and see why I ani laid off." Kinzer was hostile to the Union and made
many disparaging remarks about it to the employees, and the remark attributed
"At the time of his demotion, Simms leas earning 521/2 cents per hour. As a laborer he
-earned 421/ cents per hour.
40 Matter of Marshall Field and Conipanii et al, 34 N L R B. 1 ; Matter of The Sherwin
Williams and Chemical Workers Union. et al., 37 N. L. R. B. 260.
660 DECISIONS ,-OF, =NATIONAL LABOR RELATIONS BOARD '
to him by Ingrum was similar to those herein found to have ,been made by him.44
Ingrum • was, an honest and, forthright witness. The undersigned finds In-
grum's version of the conversation to be, substantially in accord , with the facts.
About a, week after his lay-off, Ingrum returned to the plant and- asked Bol-
ton for . reinstatement . Bolton replied that he -would reinstate him "as soon, as
we could get things settled ." Thereafter , Ingrum made ' numerous trips ,to the
plant in order to be, reinstated . When , he asked King and -Bolton to reinstate
,him, they , usually . told, him that as soon as they had a job he could perform
they would recall him. •
. At one of the April meetings , in Tomlinson 's office, Ingrum's lay-off was dis-
cussed.' King there stated that ,
"he. would try to, put [Ingrum and the other
men laid off in the latter part of March] back to work . . . before he hired
any new men ." King, however ,' did1-not keep his promise . The credible evi-
dence shows that new men have since been hired to perform the work which
Ingrum and the other' men laid off in''March 1941 ,' formerly performed or
could do. `
The respondents contended that Ingrum was laid off in order to make a job
available for Paul Duncan', ' who ' had more seniority ' than Ingrum ; and who,
before being transferred to another job, did the work Ingrum was doing at the-,
time of his lay 'off. Nevertheless , the respondents retained in their employ men
with less seniority than Ingrum The respondents "further contended that
Ingrum ' was not rehired because of the 'remark made by him "to Kinzer on the
nightof'his layoff, and' for'the further reason that ' he talked too much . Roberts,
Ingrum's immediate superior , called as a respondents ' witness, testified , and the
undersigned finds, that "Ingrum was'a satisfactory worker," but that he "talked
to the' other "Men to a'certain percent." Roberts further testified that Ingrum's
talking interfered "to a certain percent" with the work of the other men, but
that he never reported it to Bolton or to any other person. Ingrum's job was
to help unload the phosphate rock and "muck " from the freight cars to the
conveyor belt. This job is mainly performed by the use of a water hose, which
washes 'the rock and "muck" out ' of the cars. ' It is inconceivable that, if In-
grum's talking interfered with his and the other men's work Roberts would not
have , reprimanded him' for it. This , Roberts admitted , he never did. The un-
dersigned finds that Ingrum was laid off and thereafter refused reinstatement.
not because he "taked too much " or for any of the other reasons advanced at
41 Kinzer 's hostility to the Union is demonstrated by the fact that, although there was
no rule in the plant against talking he reported the night watchman to Mitchell for talking
about the Union . This report brought forth the following correspondence between Mitchell
and Paul Blanchard , one of the respondents' counsel, under date of November 13, 1941 :
Since your discussion with us In Mr. Tomlinson 's office it has developed that one
of our night watchmen is an ardent C. I. 0. supporter . This man is under bond and
is in a fairly responsible position . While making-his rounds thru the plant during
the night , he has the opportunity ( and uses it ) of talking C. I. 0. to practically every
man in the plant.
We would like to know whether the same ruling ; regarding foremen would apply
in this case. Or must we ignore his conversation with the men as long as his clock
record shows the keys to have been punched at the regular intervals. '
B. A MITCHELL.
You can't fire him. But you can assign him to another job.
(Signed) P E. B.
48 Ingrum was an active member of the Union . ' His membership and activity in behalf of
the Union were known to the, respondents because he attended all the meetings between the-
Union and the'man agement in Tomlinson's office during April 1941
19 Moreover, the evidence shows that men were shifted from one job to another within-
a department , whereevet the occasion arose.
'ARMOUR FERTILIZER WORKS, INC. '' ' - 661
the hearing by the respondents, but because the•respondents were motivated. by
his union membership and activities.'
F. C. Hall was first employed at the plant on June 17, 1940, and worked'
continuously until his lay-off on'March 28, 1941, on the small picker belt in the
wet rock department.' The respondents' answer averred that he was laid off
because his' services were no longer needed due to changes in operation and
business conditions, the same reason advanced for the lay-off of Ingrum. • •
Hall joined the Union on March 27. The next day the shift upon which he
was` -working was discontinued. The respondents maintained that at that time
they had moved their mining operations from the Ridley' Mine to the Peerless
Mine, and that, because of the material obtained • from this new mine, it was
no longer necessary to operate the small: pick belt in ,three shifts ; that they
thereupon decided to discontinue the third shift, the one on which Hall worked;
-that Hall was laid off because he had less seniority than the other men who
were transferred to other jobs; and that it was a period'of two or three weeks
after Hall's lay-off before the small picker belt was operated on a 3-shift
schedule. The respondents also maintained that Hall was unable, because' of
"his limited capacity," to perform any other job in the plant. The record,
however, does not support the, position 'asserted by the respondents. -..On the
-contrary, the credible evidence establishes that Hall was a satisfactory and in-
telligent worker and at times instructed new employees.' Prior to his employ-
ment by the respondents, he worked for a competitor of the respondents for
15 years, as an oiler, a dragline operator,FO' and as a contractor hauling.phos-
phate rock. In fact, shortly after his lay-off in March,, Hall was employed as
a dragline operator for a phosphate concern near the respondents' plant61 Al-
though Hall returned to the plant on numerous occasions and asked King,
Mitchell, and Bolton for reinstatement, he was never rehired. Despite this fact
the respondents have, since,March 28, 1941, hired many new men to perform
work Hall could, and formerly did, perform. Furthermore, at the April 5
° meeting in- Tomlinson's office, King told Hall and the other union representa-
tives that he would rehire the men laid off in March 1941 before he hired any
new men. The undersigned finds that Hall was laid off on March 28, 1941,
because of his union membership and activities. This finding is buttressed by
the warning given to Hall by Fred Roberts, who sometimes acted as shift fore-
man in the wet rock department, a day or two before Hall was laid off, that if
Hall' joined the Union he would "be sorry for it."
William A. Baker' was first employed on August 2, 1937. • He voluntarily quit
on April 1, 1939, and returned to the plant on October 23, 1939, and worked con-
tinuously thereafter until his lay-off on March 29, 1941. Until about January 22,
1941, Baker "fired the boiler" in the wet rock department. On January 22 or 23,
lie was assigned by Bolton to driving the "clean-up truck." This latter job,
which paid him 5 cents an hour more, he kept until his lay-off. '
On March 28, Baker joined the Union at the suggestion of Simms. At the same
time that he signed the application card, he filled out the application cards of
the other three men in the "clean up gang." He then gave the four applications
to Harlan Bryant, in the presence of Shift Foreman Bill Baker. The next day
Bolton laid Baker off, saying that the truck was not going to be used any more
for clean-up work.
6° A dragline operator is a skilled worker . The work Hall performed for the respondents
as that of a'common laborer.
61 Hall lost that job because of the seniority rule in that plant.
67 King denied this statement . The undersigned does not credit his denial.
11 Also referred to in the record as Bosh Baker.
662 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contended at the hearing that Baker was laid, off on March 29;.
1941, because the truck he was then driving was replaced by a tractor with an
attached dump cart and therefore Baker's services were no longer needed. The
record supports this contention. Although the credible evidence shows that the,
-truck was used on occasions during the time Baker was not working,' the under-
signed is.convinced and finds that Baker was laid off between, March 29 and April
9, 1941, because of change from truck to tractor.
'Frank Watkins was first employed on September 7,'1938 He was laid off on
August 22, 1940, and rehired on February 4, 1941. • Watkins was laid off on
March 29, 1941. During his employment, Watkins worked on the clean-up gang,
although occasionally'he worked on the picker belt in the wet rock department.
The respondents contended that Watkins' membership and activities played no,
part in the determination to lay off Watkins, but that lie was laid off because they
could no longer use his services.
On March 28, Watkins joined the Union, and shortly thereafter began wearing
his union button in the plant. On March 29, Bolton asked him about a union
meeting that Baker held near the plant on the .previous evening. Watkins told
Bolton that he had no knowledge of it, although Watkins, knew of the meeting
When Watkins reported for work on Tuesday; April 1, he went to see Bolton;
pursuant to a message Bolton sent to him by another employee. When Boltow
saw Watkins he said, "Well, I heard you have been passing CIO cards down at
the drier to my men and I can't use you no more " Watkins thereupon left the
plant. This finding is based on the testimony of Watkins, which the undersigned
credits. Bolton testified that'he'never had any conversation with Watkins about
the C.' I. 0.; that Watkins' union membership and activities played no part in
his decision to lay him off, and that as soon as he had work for Watkins he
-would rehire him Both this denial and offer of future work is not persuasive.
The record shows that Watkins had more seniority than the other two menu
retained on the clean-up gang, and that Watkins always performed his work satis-
factorily. Moreover, the evidence shows that, since March 29, 1941, the respond-
ents have hired new men to perform work Watkins formerly did or could do.60
The undersigned finds that Watkins was laid off on March 29, 1941, and thereafter
refused reinstatement because of his union membership and activities. , .
Oscar Abernathy was first employed off March 7. 1938, and voluntarily quit ten,
days thereafter. He was reemployed on July 14, 1938, and quit on December 22,
1938. He was again employed from March 23, 1939, to March .11, 1940. He'
voluntarily quit on the latter date He returned to the plant on April 8, 1940,
snd worked continuously until his lay-off on September 4, 1941. During his,
employment, Abernathy worked at the Ridley and Peerless mines repairing rail-
road ties and, tracks. Occasionally, he did some "mucking" at-the mines.
Abernathy joined the Union in the fore part of April 1941, and soon thereafter
became very active on its behalf. His activities consisted, mainly in obtaining
members and attending meetings. Most of his solicitation took place at the
plant,during working. hours. On April 14, 1941, when Armistead and Parrish
came to the Peerless mine to obtain signatures to the anti-CIO petition, Aber-
nathy, in the presence of Armistead, and again later, in the, presence of Parrish,
advised the members of his gang not to sign the petition.
64 Baker was rehired on'April 9, 1941, and put on the job he had before he was trans-
ferred to the clean-up truck. . ,
5' The respondents' records show that Watkins was laid off on March 29, 1941. Watkins
was not notified of his lay-off until. April.1, 1941. March 30,'1941, was a Sunday, and
Watkins did not work that day nor on the following day
W No new men were hired on the clean -up gang since April 1941.
ARMOUR FERTILIZER WORKS, INC. 663,
The respondents contended that Abernathy was laid off because he often,
remained away from the plant without first notifying his supervisors, and also
for the reason that on September 4, 1941, it became necessary to lay off two
members of the gang on which Abernathy worked and that he was selected with
another member because they had less seniority than the others. It is true that
the respondents laid off the two men with less seniority 54 The undesigned finds
chat Abernathy was not laid off because of his union membership and activities.
However, since Abernathy's lay-oAT, the respondents have transferred to the gang
on which Abernathy worked a man with less seniority than he. On 'several
occasions, Abernathy applied for reinstatement and was 'refused work. Aber-*
nathy was a satisfactory worker. The undersigned finds that respondents have
refused to reinstate Abernathy because of his union membership and activities.
IV. THE RESPONSIIni1TY OF ARMOUR AND COMPANY AND ARMOUR FERTILIZER WORKS,
INC, FOR THE UNFAIR LABOR PRACTICES
As set forth above, Armour and Company of Delaware and Armour Fertilizer
Works, Inc, are wholly-owned subsidiaries of Armour and Company. Officers and,
directors of the parent corporation comprise virtually all the officers and directors'
of these two subsidiaries. Paul E Blanchard testified, and the undersigned finds,
that the various subsidiaries of Armour and Company deal with their own labor
relations until such time as litigation regarding labor relations starts, or litiga-
tion is imminent and then the subsidiaries submit the matter to the parent cor-
poration ; that when litigation starts, or is imminent, the matter is usually turned,
over to Blanchard; that the parent corporation charges the particular subsidiary
involved for the time Blanchard spends on the matter; that the proceeding herein.
was submitted to the parent corporation by Armour and Company of Delaware
and that Blanchard was assigned to the matter by H. G Ellerd, the vice president
in charge of personnel at the parent corporation, and that all matters regarding.
labor relations that are submitted to the parent corporation by the subsidiaries
are assigned to him by Ellerd or b^,Faulkner,58 the general counsel of Armour
and Company
The record clearly shows that no steps were taken in this matter by Armour
and Company of Delaware until they first received the approval of Blanchard.
In fact, for the first eight days of the hearing herein, Blanchard acted as chief'
counsel for the respondent Armour and Company of Delaware. Moreover, and as
illustrative of Blanchard's part in events prior to the trial of the instant case on
September 6, 1941, the Union, the Independent, and the Board had agreed upon,
the terms of a certain stipulation. By the terms of the-proposed stipulation,,
most of the issues involved in this proceeding would have been settled. The
stipulation was then submitted to Blanchard. He refused to approve it and the;
settlement was not consummated.
Tomlinson testified that he looks to Armour Fertilizer Works, Inc, for payment
of his bills, although he considered Hagedorn, the personnel manager of Armour
and Company of Delaware, his immediate superior in matters involving the labor
relations,of the 'Maury County plant. ,
The undersigned finds that, during the period here involved, Armour and'
Company and its subsidiary, Armour Fertilizer Works, Inc, controlled the labor
policies of Armour and Company of Delaware, especially as they concerned the
65 Abernathy had more seniority 'than the , other man, Henry Thomas , who was also laid,
off on September 4, 1941.
68 Faulkner is also a director of Armour and Company of Delaware and Armour Fertilizer
Works, Inc
664, DECISIONS , - OF NATIONAL LABOR RELATIONS BOARD
commission of the unfair labor practices above set forth, and that they participated
in those unfair labor practices.
V., THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the "respondents set forth in Sections'III and IV above, occur-`
ring in connection' with their 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.
VI. THE REMEDY
Since it has been found that the respondents dominated and interfered with the
formation and administration of Independent Organization of Armour's Employ-'
ees, and contributed financial and other support to it, it will be recommended
that the respondents withdraw all recognition from! said organization as repre-
sentative of their employees for the purpose- of dealing with the respondents
concerning grievances, labor disputes, wages, rates of pay, hours of employment;'
or other conditions of work, `and completely disestablish it as such representative.
It has been found that the respondents laid off Albert Ingrum, F. C. Hall, and
Frank Watkins, and thereafter refused to reinstate any of them, for the reason
that they joined and assisted a labor organization and engaged in concerted
activities for the purpose of collective bargaining and other mutual aid and'
protection.
It has also been found that Oscar Abernathy was refused reinstatement because
he joined and assisted a labor organization and engaged in concerted activities
for the purpose of collective bargaining and other mutual aid and protection.
It will be recommended that the respondents offer Albert Ingram, F. C. Hall,'
Frank Watkins, and Oscar Abernathy immediate and full reinstatement to their
former or substantially equivalent positions, It will be further recommended
that the respondents make them whole for any loss of pay they have suffered by
reason of the discrimination, by payment to each of them of a sum equal to the
amount each would normally have earned as wages during the period from the
date of the discrimination against him to the date of the offer of reinstatement,
less his net earnings ' during such period. It is further recommended that the
respondents make Carl C. Simms and William A. Baker whole for any loss of
pay they may have suffered by reason of the discrimination, by payment to each of
them of a sum equal to the amount he would normally have earned as wages during
the period of the discrimination against him.
The undersigned finds that the evidence is insufficient to warrant the conclusion
'that Oscar Abernathy and William A. Baker were laid off because of their mem-
bership or activities in behalf of the Union. The undersigned will therefore
recommend that the allegations of the complaint which allege that Abernathy and
Baker' were discriminatorily laid off be dismissed.
at By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R. B. 440. Monies re-
ceived for work performed upon Federal , State, county , municipal , or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B.
311 U. S. 7.
ARMOUR FERTILIZER WORKS, -INC. 665-
- The undersigned finds further that the evidence is insufficient to warrant the-
conclusion that Carl C. Simms was suspended in October 1941 or demoted in
November 1941 because of his membership or activities in behalf of the Union
and therefore will recommend that the allegation of the complaint with respect
'thereto be dismissed.
Upon the foregoing findings of fact, and upon the entire record in the case, the-
undersigned makes the following:
CONCLUSIONS OF LAW
1. International Union of Mine, Mill & Smelter Workers, affiliated with - the
,C. I. O. and Independent Organization of Armour's Employees, are'labor organiza-
tions within the meaning of Section 2 (5) of the Act. -
2. By interfering with, restraining, and coercing its employees in the exercise of
.the rights guaranteed in Section 7 of the, Act, the respondents have engaged in
and are engaging in unfair labor practices, within the meaning of Section '8 (1)'
of the Act.
3. By dominating and interfering with the administration of Independent
-Organization of Armour's Employees, and contributing support to it, the respond-
ents have engaged in and are engaging in unfair labor practices, within the-meaning
of Section 8 (2) of the Act.
. 1 4. By discriminating with regard to the hire and tenure ' of employment of
Albert Ingrum, F. C. Hall, William A. Baker, Oscar Abernathy and Frank Watkins ;
and with the terms and conditions of employment of Carl C. Simms„thereby
,discouraging membership in International Union of Mine, Mill & Smelter Workers,
affiliated with the C. J. 0., the respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices. affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
,6. The respondents, by laying off William A. Baker and Oscar Abernathy on
March 28 and September 4, 1941, respectively, have not discriminated with respect
to the hire and tenure of their employment.
7. The respondents by suspending Simms in October 1941, and demoting him
in November 1941,, have not discriminated with respect to' the hire and tenure 'of
his employment. '
RECOMMENDATIONS
Uuon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondents, Armour and Company, Armour, and
Company of Delaware, and Armour Fertilizer Works, Inc., their officers,. agents,
,successors, and assigns, shall:: I
1. Cease and, desist from :
(a) Dominating or-interfering with,the administration of Independent Organ-
ization of Armour's Employees, or with the formation or administration of= any
other, labor organization of their employees, and -from contributing financial or
other support to Independent Organization of Armour's Employees,;
(b) Recognizing Independent Organization of Armour's Employees as the rep-
resentative of any of their employees for the purpose of dealing with the respond-
ents concerning grievances, labor disputes, wages, rates, of pay, hours of employ-;
,meat, or other conditions of employment;
.(c) Discouraging membership in International Union of: Mine, Mill & Smelter
Workers, affiliated with C. I. 0., or any other labor organization-of their em-
ployees by discriminating in regard to the hire and tenure of" employment of
their employees, or any term or condition of their employment ; -
,666 DECISIONS OF, NATIONAL' LABOR RELATIONS BOARD
(d) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the right 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 or other mutual aid and protection, as guaranteed in Section 7 of
the National -Labor Relations Act. •• -
2. Take the following affirmative action, wbich,,the undersigned finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from- Independent Organization of Armour's
Employees as the representative of any of their employees for the purpose of
dealing with the respondents concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment, and completely
disestablish the Independent Organization of Armour's Employees as such
representative; -
• (b) Offer to Arthur Ingrum,'F. C. Hall, Frank Watkins, and Oscar Abernathy
immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights and privileges;
(c) Make whole Albert Ingrum, F. C. Hall, Frank Watkins and Oscar Aber-
nathy for any loss of pay they may have suffered by reason of the respondentsw
'.discrimination in regard to their hire and tenure of employment, by payment
to each of them of a sum of money equal to the amount which each normally
would have earned as wages during the period from the date of the discrimina-
tion against him to the date of the respondents' offer of reinstatement, 'less' his
net earnings 80 during such period ;
(d) Make whole Carl C. Simms for any loss of pay he may have suffered by
reason of the respondents' discrimination in regard to his hire and tenure, or
terms and conditions, of employment, by payment to him of a sum equal to the
amount he normally would have earned as wages during the period of the dis-
crimination against him, less his net earnings during such period; 81
(e) Immediately post and maintain for a period of at least sixty (60) con-
secutive days, in conspicuous places throughout the plant at Maury County,
notices stating (1) that they will not engage in the'conduct from which it is
recommended that they cease and desist in paragraphs 1 (a), (b), (c), and (d),
of these Recommendations; (2) that they will take the affirmative action set
forth in paragraphs 2 (a), (b), (c), and (d) of these recommendations; and
(3) that the respondents' employees are free to remain or become, members of
International Union of Mine, Mill & Smelter Workers, affiliated with the C. I. 0.;
(f) Notify the Regional Director for the Tenth Region in writing within twenty
(20) days from the-,receipt of this Intermediate Report what•steps, the, respond-
ents have taken to comply herewith.
It is further recommended that the allegation of the complaint with respect to
the lay-off of Oscar Abernathy and William A. Baker and the suspension and
demotion of Carl C. Simms, in October and November 1941, respectively, because
of their membership or activity -in, behalf of the Union be dismissed.
It is further recommended that, unless on or before twenty (20) days from the,
receipt of this Intermediate Report; the respondents notify the said Regional
'Director in writing that they will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondents to
take'the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended-any party may within
t,
60 See footnote 59, supra.
01 See footnote 59, supra.
ARMOUR FERTILIZER WORKS, INC. - 667
thirty, ( 30) days from the date of the entry of the order transferring the case
to the Board , pursuant to Section 32 of Article II of said Rules and Regular
tions, file with the Board, Shoreham Building , Washington , D. C., an original
and four copies of a statement in writing setting forth such exceptions to the
Intermediate Report or to any other part of the record or proceeding '( including
rulings upon all motions or objections ) as he relies upon, together with the
original and four copies of a'brief in support thereof . - As further , provided in
, said Section 33, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within twenty
,(20) days after the 'date of the order transferring the case to the Board.
HOWARD MYEas, -
Trial Evaminer.
Dated August 27, 1942.'
I