Commercial Chemical Co.

National Labor Relations Board - Board Decisions

Mar 12, 1953

103 N.L.R.B. 465 (N.L.R.B. 1953)

COMMERCIAL CHEMICAL COMPANY 465
foundry engineering department supervisor, technical services super-
visor, forge and extrusion engineering superintendent, quality control
superintendents, plant engineering manager, industrial engineering
manager, employment manager, and chief cost accountant; also staff
analyst, research statistician, field procurement expeditor, quality
control analyst, the storeman in the quality control department, con-
fidential employees, professional employees, guards, executives, and
all other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
COMMERCIAL CHEMICAL COMPANY and UNITED GAS, COKE AND CHEM-
ICAL WORKERS OF AMERICA , CIO. Case No. 32-CA-187. March
1P3, 1953
Decision and Order
On October 24, 1952, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and (5) of the National
Labor Relations Act and recommending that the Respondent cease
and desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the Respondent filed exceptions to the Intermediate Report.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions thereto, and the entire record in this
case, and to the extent consistent herewith, hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner 2 The
Board, however, specifically adopts in full the Trial Examiner's reso-
lutions of credibility. With respect to those findings, conclusions,
and recommendations of the Trial Examiner which the Board adopts,
it relies solely upon the following :
A. Violations of Section 8 (a) (1)
The Union began its organizational campaign at the Respondent's
plant in the early part of March 1951. We find, as did the Trial
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Members Houston, Murdock,
and Styles].
2 In view of the General Counsel's failure to except to portions of the Intermediate
Report dismissing certain allegations of the complaint , we adopt without comment the
findings of the Trial Examiner.
103 NLRB No. 54.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner , that the Respondent thereafter threatened its employees
with the loss of privileges and benefits they then enjoyed if the Union
came into the plant, and interrogated its employees concerning their
views on union matters. Specifically, we find that the following state-
ments of the Respondent, derived from the credible testimony of a
number of employee witnesses, constitute independent violations of
Section 8 (a) (1) of the Act: (1) Vice-President Hallam Boyd's
statements in a speech to the assembled employees on April 11, 1951,
to the effect that: (a) If the Union came in the Respondent would
require physical examinations of its employees; (b) the Respondent
would cease lending money to its employees; (c) the workweek of
72 to 84 hours might be cut to 40 hours, resulting in less take-home
pay; (d) the employees would lose such current privileges as time off
to smoke, drink cokes, and wash and repair their cars on company
time. Like the Trial Examiner, we find that the nature of the threats
was emphasized by Boyd's further statement, according to the cred-
ible testimony of Foreman Ellis A. McMillan, that simply because
the Respondent had not been hardboiled wasn't a sign that it couldn't
be if wanted to be. However, we do not adopt nor do we find it
necessary to pass upon the Trial Examiner's conclusion that, assum-
ing Boyd's speech was "merely a prediction, a statement purporting
to indicate only the natural result of give and take in collective bar-
gaining may be coercive when made by one `who has the power to
change prophecies into realities."' (2) Boyd's interrogation on
April 11, immediately following his speech, of employees 0. J. Elmore,
Charlie Pinner, J. B. Heatherly, and R. L. Hitchcock as to their
views about joining the Union. (3) Assistant Vice-President Schef-
fer's remark to employees Heatherly, Raymond W. Wells, and R. J.
Fite on April 12, 1951, after the latter had just finished loading a truck,
"Boys, if you had a union, I would tell you boys to punch a clock
until we needed you later." (4) Scheffer's statement to employee
John Haire, shortly after Boyd's speech of April 11, that Haire had
a hernia and might not be able to pass a physical examination, and
Scheffer's additional statement to this employee that the employees'
take-home pay would not be as much if the Union came in. (5)
Scheffer's statements to a group of employees in a locker room of the
Respondent's plant on April 12, 1951, to the effect that: (a) The
Respondent could stop furnishing the employees towels and soap
and could "cut the checker playing out"; (b) if the Union came in
the Respondent could stop the employees from smoking and could
make them punch time clocks in and out when they went to the rest-
room . (6) Respondent's practice of interrogating prospective em-
ployees under the heading "Union Affiliation" included on the appli-
cation forms furnished by the Respondent, and the oral interrogation
COMMERCIAL CHEMICAL COMPANY 467
of employee Richard O. Ballard by Respondent's personnel clerk,
Walter^Chambliss, as to whether Ballard belonged to the Union.
B. Violation of Section 8 (a) (5)
The record shows that the Union began to organize the Respondent's
plant during the first week of March 1951. The Trial Examiner
found, and we agree , that the following employees constitute an ap-
propriate unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act : 3
All production and maintenance employees, including truckdrivers
and the janitor, at the Employer's Memphis, Tennessee, plant, but ex-
cluding all office and clerical employees, salesmen , watchmen, guards,
and all supervisors as defined in the Act.
By March 5, 1951, a majority of the employees in this unit had
designated the Union as their collective-bargaining representative.
On this date the Union, by registered mail, informed the Respondent
of its claim to majority representation and requested a conference for
the purpose of recognition and bargaining. The Respondent did not
reply. Thereafter, W. A. Copeland, international representative of
the Union, called the Respondent by telephone on several occasions
and on each occasion was told that Boyd, whom he would have to
contact, was out of town. On March 9, 1951, the Union filed a repre-
sentation petition for these employees at the Board's Regional Office.
Learning that Respondent's attorney was Newell N. Fowler, Copeland
called him a few days after the petition was filed. At that time Fowler
indicated that the Respondent might agree to a consent election. On
March 23 Fowler, Copeland, Lyman Covert, an organizer for the.
Union, and O. J. Elmore, an employee of the Respondent, attended a
conference conducted under the auspices of the Board's Regional
Office. During the course of the conference Fowler insisted that the
seasonal employees be included in the unit. The Union agreed.
Fowler thereupon replied, according to the uncontradicted testimony
of Copeland, "0. K., if you agree to the seasonal employees being in the
unit, we will agree to an election." Although the Union desired the
election as soon as possible, on Fowler's insistence, the date was de-
layed until April 13. After the parties had considered the details of
the election, the agreement was reduced to writing and was signed for
the Union by Covert. Fowler indicated that he wanted 2 or 3 days to
talk the matter over with Boyd before signing, but he assured the
3 The Respondent has excepted to the inclusion by the Trial Examiner of seasonal em-
ployees in this unit . As did the Trial Examiner , we find no merit in the Respondent's
position . The Board customarily includes seasonal and year-round employees in the
same unit . Utah Canning Company, 100 NLRB 606; Fox Deluxe Foods, Inc., 96 NLRB
1132; and R. Appel, Inc., 95 NLRB 7. We note, as additional evidence of the Respondent's,
lack of good faith, that its position in the representation case involving these employees.
was that seasonal employees should be included in the unit.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union representatives that the agreement would be signed and returned
within 3 days at the latest.
The consent-election agreement was never signed by the Respondent.
After the 3-day period had elapsed, Copeland spoke to Fowler on sev-
eral occasions and the latter assured Copeland that the agreement
would be signed. Finally, on the Union's insistence, Fowler agreed to
give a yes or no answer by Sunday, April 2. On that date Copeland
called Fowler from 6 to 10 times during the hours from 9 a. in. to 2
p. in. Fowler was too busy to give a satisfactory reply. Copeland
called again that evening and Fowler repeated his assurance that the
agreement would be signed. Copeland thereupon arranged with
Fowler for a meeting on the following Wednesday in the latter's office.
Covert attended this meeting for the Union but did not obtain a
signed agreement from the Respondent.
At the Union's request, a hearing in the representation case was
scheduled by the Board for April 18. Although duly served with
notice of hearing, the Respondent did not appear. The hearing was
adjourned. On April 27 the Union filed the charge in this case. On
May 22 the hearing was reconvened after notice to all parties. At
this hearing Fowler and Boyd appeared for the Respondent. Covert,
speaking for the Union again, requested the Respondent to agree to a
consent election. The Respondent refused. Thereafter the Union
withdrew its petition.
In its answer to the complaint, the Respondent, while admitting
that it had refused to bargain with the Union from March 12, 1951,
contended that the Union did not represent a majority of its em-
ployees in an appropriate unit. The Respondent further excepts to
the Trial Examiner's finding that the Respondent's original refusal
occurred on that date because the Trial Examiner did not specifically
find that the Union represented a majority of such employees on March
12, 1951. As indicated above and in the Intermediate Report, the
Union notified the Respondent of its claim to majority representation
and made its formal request to bargain by registered letter, dated
March 5, 1951. The Respondent admits receipt of the letter. Boyd,
however, testified that he was not in Memphis during the period from
March 5, 1951, to March 10 or 11, and therefore did not himself read
the letter until March 12, 1951. We find no merit in the Respondent's
contention, advanced as the reason for its refusal to bargain, that the
Union did not on March 12, 1951, or thereafter, represent a majority of
its employees in an appropriate unit. As detailed in the Inter-
mediate Report, of the 26 employees on the Respondent's payroll for
the week from March 2 through March 8, 1951, 17 had designated the
Union to represent them for the purposes of collective bargaining by
March 5, 1951. The record shows that, while the Respondent's com-
COMMERCIAL CHEMICAL COMPANY 469
plement of employees had increased to 41 during the next week, 9
additional employees had signed the Union's authorization cards on
March 12, 1951, giving the Union a substantial continuing majority
as of that date. We find that the Union on March 5, 1951, and at all
times material herein, represented a majority of the employees in the
unit described above for the purposes of collective bargaining.
While we agree with the Trial Examiner that the Respondent re-
fused to bargain on March 12, 1951, we find further that the amended
complaint properly alleges the Respondent's original refusal to bar-
gain from about March 5, 1951. As indicated above, the Respondent
admits receipt of the Union's letter apparently sometime during the
week preceding Monday, March 12, 1951. The letter, dated March 5,
1951, was mailed from the Union's offices in Memphis, Tennessee, to
the offices of the Respondent in the same city. The Board assumes
the normal course of the mails. We therefore find, contrary to the
Trial Examiner, that the Union's request for a bargaining conference
was received by the Respondent on or about March 5, 1951. There is
no suggestion in the record that the refusal of the Respondent to
recognize and bargain with the Union from about March 5 to March
12 was due to the absence of Boyd from Memphis or any other lawful
reason.
It is clear from the facts set forth above that the Respondent did
not in good faith, as it might have, question the Union's majority
standing. Indeed, Covert testified, without contradiction, that dur-
ing his April conference with Fowler in the latter's office, Fowler
asked him whether the Union had signed up a majority and, upon
receiving a reply in the affirmative, Fowler stated, "I believe you do
because Copeland has said that you do, and I find him to be reliable."
In view of the Respondent's extensive coercive statements found herein
to be violative of Section 8 (a) (1) of the Act, its broken promises
with regard to signing a consent election agreement, and its dilatory
tactics in seeking to forestall an election, detailed above, we are con-
vinced, and find, that its original and continuing refusal to bargain
was not motivated by a good-faith desire to test the Union's majority
standing, but that beginning on or about March 5, 1951, and at all
times thereafter, it has refused to bargain with the Union in violation
of Section 8 (a) (5) and Section 8 (a) (1) of the Act.
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 Respondent, Commercial Chemical Com-
pany, Memphis, Tennessee, its officers, agents, successors, and assigns,
shall :
257965-54-vol. 103-31
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Interrogating its employees, through the use of employment
forms or otherwise, concerning their union membership or activities,
and threatening its employees with the deprivation of benefits and
privileges because of their concerted activities.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations , to join or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
(c) Refusing to bargain collectively with United Gas, Coke and
Chemical Workers of America, CIO, as the exclusive representative
of all their employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, or other conditions of employment.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with United Gas, Coke and
Chemical Workers of America, CIO, as the exclusive representative
of the employees in the appropriate unit, and embody in a signed
agreement any understanding reached.
(b) Post at its plant in Memphis, Tennessee, copies of the notice
attached to the Intermediate Report and marked "Appendix A." 4
Copies of said notice, to be furnished by the Regional Director for the
Fifteenth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Fifteenth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps have
been taken to comply herewith.
* This notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner " and substituting
in lieu thereof the words "A Decision and Order " This notice is further amended by
striking from the description of the bargaining unit the words "supervisory employees"
and substituting in lieu thereof the word "supervisors ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
COMMERCIAL CHEMICAL COMPANY 471
Intermediate Report and Recommended Order
The complaint herein, as amended at the hearing, alleges that the Respondent
has violated Section 8 (a) (5) of the National Labor Relations Act, as amended,
61 Stat. 136, by refusing to bargain with the Union and by bargaining directly
with its employees; and Section 8 (a) (1) of the Act by said alleged acts, and
by threatening and interrogating employees, implying that it was observing
their union activities, and refusing letters of recommendation because of such
activities; all in violation of Section 2 (6) and (7) of the Act. The answer
denies the allegations of unfair labor practices but admits that the Respondent
has refused to bargain, claiming as justification for such refusal that the Union
has not represented a majority of the employees in an appropriate unit.
A hearing was held before me at Memphis, Tennessee, from May 12 to 14,
1952, inclusive, and on June 23, 1952. Pursuant to leave granted to all parties
to file briefs, a "Memorandum of Authorities" was thereafter filed by General
Counsel.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Respondent, a Delaware corporation with
principal place of business in Memphis, Tennessee, is engaged in the manufacture
of calcium arsenate, an insecticide used in combatting the boll weevil ; that it
annually purchases materials valued at more than $350,000, approximately 90
percent of which is shipped to its plant from points outside the State of Ten-
nessee ; and that it annually sells and distributes products valued at more
than $525,000, of which approximately 90 percent is shipped from its Memphis
plant to points outside the State. It was admitted and I find that the Respondent
is engaged in commerce within the meaning of the Act.
It was admitted and I find that the Union is a labor organization and admits
to membership employees of the Respondent.
II. THE UNFAIR LABOR PRACTICES
References hereinafter made to the evidence, not ascribed to named witnesses,
represent uncontradicted testimony, or findings where conflicts have been re-
solved ; findings are made herein on the basis of reliable, probative, and sub-
stantial evidence on the record considered as a whole and the preponderance of
the testimony taken, and evidence in conflict with the findings which is not
discussed has not been credited. As will be indicated, I have accepted as credible
the testimony of some witnesses in part only ; rejecting portions, I have felt
warranted in crediting other portions of given witnesses' testimony.
A. The alleged violation of Section 8 (a) (5)
The Respondent's production is seasonal, the season running approximately
from 3 to 8 months since 1948. Production was maintained for 61 months in
1951; the Respondent indicated an intention to cease after a month and a half
during 1952, production being continued at the time of the hearing.
A skeleton maintenance crew is maintained during the off-season, the number
recently running from 6 to about 10. All who are kept on during the off-season
are employed in season on production work and without distinction. Many
seasonal employees are reemployed year after year ; of 41 employees on the
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll for the week beginning March 9, 1951, 31 had been employed during
previous years. With overtime, gross earnings are higher during the season
although the rate per hour is lower than during the off-season, when a weekly
minimum is paid for 40 hours. (In 1951, weekly paid employees were put on an
hourly rate with the beginning of the season on March 2.) The Respondent's
position, declared at the hearing, is that none of the production employees is a
permanent employee.
The frequency, or lack of it, with which employees return from season to season
may influence agreement on the terms of a collective-bargaining contract. But
it is clear enough that seasonality does not bar a finding that these employees
constitute an appropriate unit 1 That the work was seasonal was clear enough
to new employees. Although no specific period of time was fixed, they understood
that they would work through the season, as they did. Nor does the Respond-
ent's inability or failure to predict how long a season will last create such a
condition of impermanence as would bar a finding of appropriate unit. The
Respondent's argument in this connection would deprive employees in many
seasonal jobs of their right to engage in organizational activities.1
There remains, then, the question of mutuality of interest among the various
employees. The Respondent urged that, aside from the question of seasonality,
distinction should be made among the seasonal employees to exclude the bull
gang from an appropriate unit. (It earlier sought the exclusion of the janitor,
but later agreed to his inclusion.) That interchange of duties is both feasible
and common appears clearly from the testimony of various witnesses. Thus,
Fite, Sr., testified that he has "done a little of everything" except in the acid
plant, enumerating specifically mixing chemicals, packing, working in the tin
shop, driving a truck, and loading and unloading cars ; Haire, like Fite an old
employee, did general maintenance work and loading during the off-season, and
in season performed various production jobs and and also worked on the bull
gang, loading and unloading cars ; J. M. Burns, employed by the Respondent
for the first time in 1950, made and painted metal drums, packed, and about once
a week, for a few hours at a time, worked on the bull gang ; Wells, first hired
in 1951, was a member of the bull gang but packed chemicals for a few minutes
at a time each day during breaks in the loading and unloading; Heatherly,
although a relatively new employee, was kept on odd jobs such as cleaning,
repairing, and loading during the off-season, and with others in the bull gang
not only drove a truck, loaded, and unloaded, but also sacked up, made boxes,
and performed various odd jobs ; Hitchcock, who made drums in the tin shop, also
packed and occasionally worked on the bull gang ; H. E. Richardson's work was
similar.
Transferability is not lessened if, as testified by Scheffer, the Respondent's
assistant vice president in charge of production at the plant, members of the
bull gang did production work "voluntarily." His testimony that production
employees join those on the bull gang for about an hour at a time further en-
hances the aspect of transferability.
It may be noted also that the unit described in the agreement for consent
election was concurred in by the Union and the Respondent's counsel on March
23, 1951. While, as noted infra, the latter was not authorized to bind the
1It was testified without contradiction that at a meeting on March 23, 1951, called to
arrange for a consent election , the Respondent 's attorney urged that seasonal employees
be included in the unit . We need not consider the conflicting testimony whether subse-
quently and on May 22, the adjourned date of the reconvened representation hearing,
the Respondent questioned the appropriateness of the unit.
2 Cf. Ninth Street Skookum Growers, Inc., 99 NLRB 944; Libby, McNeil c6 Libby, 90
NLRB 297.
COMMERCIAL CHEMICAL COMPANY 473
Respondent, the failure to sign the agreement was not ascribed to that descrip-
tion of the unit, which is as alleged herein. I find that the following classifica-
tions of employees at the Respondent's Memphis plant constitute an appropriate
unit for the purpose of collective bargaining:
All production and maintenance employees, including truckdrivers and janitors,
but excluding all office and clerical employees, salesmen , watchmen-guards, and
supervisory employees as defined in the Act.
The record indicates that of the 26 employees (excluding the watchman)
shown to be on the payroll during the week from March 2 through 8,1951, and who
constitute the appropriate unit as found, 17 were represented by the Union on
March 5 a (Were the bull gang excluded, the respective figures would be 24 and
15.) The Union represented a majority on March 5.
On March 5, the Union, by registered letter addressed to the Respondent, made
a claim of majority representation and requested a conference looking to recog-
nition and bargaining. It is unnecessary to detail here the testimony concerning
the requests and refusals to bargain, the Respondent's failure to attend a repre-
sentation hearing at the Board's office, and the withdrawal of the representation
petition,' and the argument that a subpena duces tecum issued in connection with
the representation hearing and ignored was void. Nor need we go into the ex-
planation that the Union made no effort to communicate directly with the Re
spondent after the early part of March because its dealings were thereafter with
the Respondent's counsel, who requested that no contact be made with the Re-
spondent directly. The Respondent in its answer denying the allegation of a
request to bargain "on or about March 5, 1951," and "continuously" since that
date, nevertheless admitted the allegation as originally made in the complaint
that it refused to bargain on or about March 12.
Boyd, the Respondent's vice president and director with authority over these
matters, was away during the week of March 5, returned on the 10th or 11th,
and did not receive the Union's letter until about the 12th. (In the meantime, the
petition in the representation proceeding was filed and presumably received.)
It appears that the dates set forth are the distinguishing feature between the
answer's denial of the allegation concerning requests to bargain (on March
5) and the admission of the refusal (on March 12). In any event, the refusal is
admitted, and I find that it occurred on March 12, 1951. The steps thereafter
taken toward certification of the Union might have resulted in disregard of the
refusal ; they did not efface it.
The unfair labor practices hereinafter found further indicate that the Re-
spondent did not thereafter in good faith question the unit or the majority, but
that it was motivated "by a desire to gain further time in which to undermine
[the Union's] support."
There is no proof that the Respondent bargained directly with its employees
on or about March 6 unless reference be to the increase which was granted and,
8 The decision to "go along with the other boys" by some who "never did want" the
Union is no less a designation of representative . Nor did the Respondent cite doubt of
majority as the basis of its refusal to bargain . On the contrary , it proceeded , as found
infra, to interfere with its employees ' lawful activities. ( Charles R . Krimm Lumber
Company, et al., 97 NLRB 1574.)
A Because the Respondent 's attorney was involved as a negotiator , I make the finding,
which is not necessary to my resolution of the issues, that I do not credit the suggestion
that he promised agreement by the Respondent for a consent election and that the
promise was not performed ; I credit the testimony that his "action " was that he would
have to get Boyd's approval.
6lnter-City Advertising Company of Greensboro, N. C., Inc., 89 NLRB 1103. See also
Charles R. Krimm Lumber Company et al., supra.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the records available at the hearing show, was made effective during the week
beginning March 2 to all employees who had worked a full season.
At the outset, it is to be noted that there is no evidence of bargaining with
employees in this connection. Grant of an increase in derogation of a union's
bargaining status is, however, evidence of failure to bargain in good faith, and
constitutes interference with employees' rights. Since the issue was fully liti-
gated ° and the question of variance from the allegation of the complaints not
raised , the evidence will be considered.
It does not appear that the decision or announcement of the wage increase
followed receipt of the letter of March 5 which, as noted supra, was delayed in
reception. Scheffer and Seago, the Respondent's assistant treasurer, testified
specifically that Boyd decided in February to grant the increase at the beginning
of the season, I. e., on March 2. (While Scheffer testified that a few employees
received the increase several days before March 2, the payroll record for the week
beginning February 23 and the testimony bear this out with respect to only 1
employee, Brittingham.) Foreman McMillen testified that he first heard of the
Union about a week after the increase went into effect. Nor is there evidence
of union activity before March 2, when a union representative met with 3 em-
ployees at a private home. Heatherly's testimony that the Union's representa-
tive told him one morning that the March 5 letter had been sent, and that he
"received" the increase that afternoon, is of no probative value in this connec-
tion since, aside from the question of receipt of the letter, it appears, although
not clearly, that on the very day that it was sent he was told about the letter
and the Respondent granted the increase. The witness' confusion in this con-
nection is apparent : He testified that he had been cut back to 75 cents perhaps a
month before but certainly prior to March 2, whereas the payroll record indicates
that he was on the off-season weekly rate until that day. Nor can I credit his
testimony that about a week after he was cut back to 75 cents, he and Elmore
asked Scheffer for a raise but were turned down.
No more helpful is the senior Fite's testimony that his rate was 75 cents when
he returned to work on March 2 and that the increase was granted "a few
days" thereafter, after he heard of the letter of March 5. As noted above, the
higher rate, where increases were granted, was paid for all work during the week
beginning March 2. While the suggestion appears that the increase was granted
during the latter part of that week and made retroactive, neither this witness
nor any other so testified. While dates may be forgotten, recollection would
normally be clear concerning payment in excess of what had been expected. I
find that the increase granted on or about March 2, 1951, was made without
reference to employees ' organizational activities.
B. The alleged independent violation of Section 8 (a) (1)
The testimony of many employees' is to the effect that on April 11, 1951, Boyd
called a meeting of the employees, in which he referred to the Union and its
activities. He told them that if a union came in, they would lose such privileges
as overtime work, free periods, cash loans, and opportunities to buy drinks, smoke,
get cool, and work on their automobiles during spare time ; and that they might
have to submit to physical examinations! However correct Boyd's statement
" Starrett Brothers and Eken, Incorporated , 92 NLRB 1757; The Jackson Press, Inc., 96
NLRB 897.
7 Although each of the witnesses did not recall all of the various remarks attributed to
Boyd and Scheffer , there is sufficient evidence and corroboration.
8 Scheffer testified that this reference was to employees to be hired in futuro. No
explanation was offered for mentioning such employees ; I do not credit his testimony.
COMMERCIAL CHEMICAL COMPANY 475
that the Respondent's operation differs from those where speedups are in effect,
his further coupling of privileges with the absence of a speedup is reasonably to
be construed in the context of his remarks as a threat of a speedup and the
removal of privileges if a union got in. Boyd 's further statements that he had
no objection to the Union and that employees had a right to join a union did not
eliminate the threat ; he declared and it was clear enough that loss of privileges
might result . We are not here concerned with any advice or other statements
which Boyd may lawfully have submitted to his employees as an expression of
his opinion ; the question is rather whether despite his expressions of neutrality
he interfered with organizational activities by threats , interrogation , or otherwise.
Boyd testified that he did not threaten the employees or urge them not
to join the Union ; he "merely talked in general terms that they did have
certain privileges ." He was "trying to give them the idea to think this thing
through ." In response to a direct question , he testified that he was "in effect
pointing out (to the employees ) that if they were represented by the Union,
the Company might, during the give and take of collective bargaining , negotiate
a contract under which employees would be deprived of various privileges."
This was hardly a mere prediction of possible result as distinguished from
a threat . But if it be argued that it was merely a prediction , a statement
purporting to indicate only the natural result of give -and-take in collective
bargaining may be coercive when made by one "who has the power to change
prophecies into realities ." 0 Supernatant remains the thought of possible loss
to be imposed by one who has already foreseen and warned against it. This
finding of threat is further supported by Foreman McMillen 's testimony that
Boyd explained to the men the privileges which they had and said that "simply
because [ the Respondent ] had not been hardboiled wasn 't a sign that [it]
couldn 't be if [it] wanted to be."
As for Seago's testimony that loans are his personal responsibility and that
he makes them to employees from petty cash funds for which he is responsible,
it is clear that he is the Respondent 's representative in such transactions,
and that in any event his status as such representative does not change in the
mind of the employees.
It was further testified , with corroboration , that on April 12 Scheffer said
to Heatherly , Fite, Sr., and Wells , who were sitting around on the loading
dock during a break in the work , that if they had a union he could have them
punch out when they had no work to do . This was a threat of reprisal against
lawful organizational activities . A similar threat is found in Scheffer 's state-
ments to Haire that he might not be able to pass a physical examination ( Boyd's
reference to physical examinations having been found to be a threat ), and that
take-home pay would be less if they voted for a union.
On the same day, while some of the employees were playing checkers in the
locker room , Scheffer pointed out that the Respondent could quit furnishing
towels and soap and could cut out checker playing . These remarks are con-
sidered in the framework of the discussion concerning a union. Scheffer's
jocular manner did not down the fact that a cut in overtime and loss of
privileges would have been "rough ." The threat existed and , with it, the
interference ." I do not credit Scheffer 's denial of the statements attributed
to him as noted above. His unreliability as a witness is indicated by his testi-
sN. L. R. B. v. W. C. Nabors Company, 196 F. 2d 272 ( C. A 5).
10 While Hitchcock, testifying concerning Scheffer 's jovialness , declared that the men
continued to play checkers after they were told not to, Scheffer himself testified that
they have obeyed since . Whatever his manner , the employees have respected his admoni-
tions either by obedience or by dissimulation.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony, already noted, that Boyd mentioned physical examinations in connection
with employees to be hired, and by comparison of the employment record here-
inafter considered with his testimony that employees were not asked about
their union affiliation.
Further interference is found in Boyd's April 11 inquiry of several employees
how they felt about the Union. Several employees testified to this, as did
Scheffer. Hitchcock testified that the question was put to him by Scheffer, Seago,
and Boyd.
Aside from testimony that Chambliss, the Respondent's clerk in charge of em-
ployment records, made inquiry concerning union affiliation, personal history or
employment records produced at the hearing indicate that such information was
sought and obtained from employees hired during the 1951 season. (Chambliss
was not called as a witness although he attended the hearing.)
Interrogation and inquiry concerning union activity are prohibited by the Act n
Nor, under the express terms of the Act, does it matter whether questioning
constitutes or contains a threat. Whether or not there be a threat is material
under the statute only in connection with the expression of views, argument, or
opinion. Such expression is permitted under the Act although it may interfere
with lawful concerted activities. But the Act does not, nor does the doctrine of
free speech, authorize inquiries. Questions are not expressions of opinion. On
the contrary, they look to expressions and commitments by employees who as
individuals lack the power of the employer and are not on equal footing with
him ; such questions, emphasizing the disparity in bargaining power, tend to that
industrial strife or unrest which it is the policy of the Act to eliminate.
The testimony concerning alleged refusal of letters of recommendation on
termination is quite confused. Rice testified that about 2 days after he was laid
off at the close of the season in September 1951, he and Parker returned to the
plant and asked Scheffer for letters of recommendation; Scheffer inquired
whether they were going to International Harvester and, after Rice answered
in the negative and Parker in the affirmative, told them that he wouldn't give
them a letter if they were going to mess things up at International Harvester
as they had at the Respondent's plant ; although Rice delcared that he was not
going to International Harvester, Scheffer refused him a letter addressed to
whom it may concern ; that on the following day Rice went with Heatherly to see
Scheffer, who without explanation refused Heatherly's request for a letter for
Rice.
It is clear from Rice's testimony that Parker wanted a personal letter to
Scheffer's friend, Jaffke, who was the comptroller at International Harvester.
It appears further that Rice also wanted such a letter and was for that reason
refused. True, he testified that he declared that he did not want to go to Inter-
national Harvester. But I cannot reconcile that testimony with his statement
that he later asked for a general letter, which Scheffer "still" refused. (Heath-
erly testified that Scheffer, when he later gave him a letter of recommendation,
told him to tell Rice that he had one written for him ; but Heatherly didn't think
that Rice ever picked up his letter. In this connection there is no indication
of a change of mind on Scheffer's part or of surprise on Heatherly's. )"
Nor do I credit Rice's testimony that when Heatherly asked Scheffer for a
letter for Rice (the latter did not mention a request for Parker also), Scheffer's
u The Jackson Press, Inc., supra.
v This later letter is not cited as proof of Scheffer's earlier attitude . But Heatherly's
reaction is material to the question whether Scheffer appeared to have changed his mind.
COMMERCIAL CHEMICAL COMPANY 477
part in the conversation was limited to "No." As noted, Heatherly's testimony
was markedly different"
Rice testified further that Heatherly did not ask for a personal letter to
Jaffke, and was given a general letter. Heatherly appeared to confuse Parker
with Rice. He, too, testified that Scheffer said that a general letter of recom-
mendation might lead to a mess at International Harvester ; yet he pointed to
no inconsistency nor did he undertake to explain Scheffer's issuance of such a
letter for Rice. One can only guess that Heatherly was here thinking of
Scheffer's reply to Parker's request for a personal letter. As for any reference
by Scheffer to making a "mess," the latter may have used the term in connection
with his friendship with Jaffke, but hardly with the possibility of disturbing
International Harvester's relations with its "strong union." (Rice understood
"mess" to mean that Scheffer did not want him or Parker to organize Inter-
national Harvester.)
I note also Scheffer's denial that he ever refused a "regular" letter of recom-
mendation similar to that which other employees get ; unwilling to presume on
his friendship with Jaffke, he offered Rice a letter and did give Heatherly a
complimentary recommendation to another company. Furthermore there is no
indication of casual connection between union activities and refusal of any
letter of recommendation. I find that General Counsel has not proved the allega-
tion of refusal of letters because of union activities.
In support of the allegation that the Respondent advised employees that it
was aware of their organizational activities, General Counsel's position in this
connection being that it thus implied surveillance, it was testified that when
0. J. Elmore replied that he was for the Union in response to Boyd's query on
April 11, the latter declared, "That is what my lawyer said." Similarly, Scheffer
is reported by Haire to have said that the Respondent's lawyer knew 0. J.
Elmore was a leader for the Union and had been to a meeting. It appears that
the basis for the lawyer's knowledge was his impression that Elmore attended a
Board meeting as a union representative. There is no warrant here for holding
that the Respondent indicated surveillance 14 J. M. Burns' testimony that
Scheffer told him that Elmore was at a meeting "trying to get the Union organ-
ized," and that the Respondent's lawyer told him that he was at the meeting
points to a meeting at the Board. It does not appear that reference was made
to a union meeting. General Counsel recognized that "there is some question
about" whether that constitutes a violation as alleged in the complaint ; I find
no implication of surveillance, nor in the testimony that Scheffer, whose practice
and right to go through the plant are not questioned, said that he could see
groups in conversation and splitting up as he approached.
I note no evidence, nor does General Counsel point to any, to support the
allegations of threats to hire additional employees to beat the Union in an
election, or of statements to employees that an economic layoff was due to union
activities. The testimony by several employees, but denied by Scheffer, that he
stated that if the employees organized and went on strike the Respondent could
get other employees is no more than a statement of the law ; it differs from the
allegation of threats to beat the Union in an election, and is not itself alleged
as a violation.
"Rice's testimony that the "piece of paper" which he received when he was laid off
may have been a letter of recommendation is no self-contradicting admission (he there-
after sought a letter) ;, rather does it further indicate his confusion.
11 Haire's uncertain testimony, "I believe he said that he knew we had our meetings
when the Union met," does not warrant a finding of implied surveillance . Later ques-
tions put to J. M. Burns intended to elicit corroboration failed of their purpose.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, because testimony was received concerning knowledge and assump-
tion that employees would not be paid during the season at the off-season rate,
and concerning a contrary expectation, it may be noted that the hourly rate
reduction from the weekly off-season wage was not connected with and preceded
the union drive. Nor is such reduction alleged as a violation.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in
connection with the operations described in section I, above, have a close, inti-
mate, 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.
IV. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging in
certain unfair labor practices affecting commerce, I shall recommend that it
cease and desist therefrom and take certain affirmative action in order to ef-
fectuate the policies of the Act.
It has been found that the Respondent has refused to bargain collectively with
the Union thereby interfering with, restraining, and coercing its employees. I
shall therefore recommend that the Respondent cease and desist therefrom and
also, upon request, bargain collectively with the Union with respect to wages,
hours, and other terms and conditions of employment, and embody in a signed
agreement any understanding reached.
It has been further found that the Respondent, by threats and interrogation,
has interfered with, restrained, and coerced its employees in violation of Section
8 (a) (1) of the Act. I shall therefore further recommend that the Respondent
cease and desist therefrom. ,
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. United Gas, Coke and Chemical Workers of America, CIO, is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at the Memphis plant, includ-
ing truckdrivers and janitors, but excluding all office and clerical employees,
salesmen, watchmen-guards, and supervisory employees as defined in the Act,
constitute a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9 (b) of the Act.
3. United Gas, Coke and Chemical Workers of America, CIO, was, on March
5, 1951, and at all times since has been the exclusive representative within the
meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for
the purpose of collective bargaining.
4. By refusing to bargain collectively with United Gas, Coke and Chemical
Workers of America, CIO, as the exclusive bargaining representative of the
employees in the appropriate unit, Commercial Chemical Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(5) of the Act.
5. By such refusal to bargain and by threatening its employees concerning
their union affiliation, by using employment forms inquiring concerning such
affiliation, and by otherwise interrogating employees concerning their union
sympathies, thereby interfering with, restraining, and coercing its employees
NAT. ASSN. OF BROADCAST ENGINEERS AND TECHNICIANS 479
in the exercise of rights guaranteed in Section 7- of the Act, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL bargain upon request with UNITED GAS, COKE AND CHEMICAL
WORKERS OF AMERICA, CIO, as the exclusive representative of all employees
in the bargaining unit described herein with respect to rates of pay, hours
of employment, or other conditions of employment, and embody in a signed
agreement any understanding reached. The bargaining unit is:
All production and maintenance employees at the Memphis, Tennessee,.
plant, including truck drivers and janitors, but excluding all office
and clerical employees, salesmen, watchmen-guards, and supervisory em-
ployees as defined in the Act.
WE WILL NOT interrogate, by employment forms or otherwise, or threaten
employees concerning their union affiliation or sympathies.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist UNITED GAS, COKE AND CHEMICAL
WORKERS OF AMERICA, CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all of such
activities except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
COMMERCIAL CHEMICAL COMPANY,
Employer.
Dated-------------------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
NATIONAL ASSOCIATION OF BROADCAST ENGINEERS AND TECHNICIANS,
CIO and NATIONAL BROADCASTING COMPANY, INC. Case No.
2-CD-63. March 12, 1953
Decision and Determination of Dispute
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in
103 NLRB No. 55.