Interchemical Corp.

National Labor Relations Board - Board Decisions

May 17, 1949

83 N.L.R.B. 641 (N.L.R.B. 1949)

In the Matter Of INTERCHEMICAL CORPORATION and UNITED CEMENT,
LIME & GYPSUM WORKERS INTERNATIONAL UNION, A. F of L.
Case No.10-C-°2157.Decided May 17,19419
DECISION
AND
ORDER
On July 30, 1948, Trial Examiner Sidney Lindner issued his- In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had not violated Section 8 (3) of the Act as alleged in
the complaint and recommending that the complaint be dismissed
insofar as it alleged such violations. The Trial Examiner found,
however, that the Respondent had interfered with, restrained, and
coerced its employees within the meaning of Section 8 (1) of the Act
and recommended that it cease and desist therefrom and take certain
affirmative action as set forth in the copy of the Intermediate Report
attached hereto.'
Thereafter, the Respondent and the General Counsel filed excep-
tions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Reynolds, and
Murdock].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
I Section 8 ( 1) and (3) of the National Labor Relations Act, which the complaint alleges
was violated, are continued in Section 8 (a) (1) and 8 (a) (8) of the Act, as amended
by the Labor Management Relations Act of 1947.
83 N. L. R. B., No. 95. 641
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Interchemical
Corporation, Albion Kaolin Unit, Standard Coated Products, Heph-
zibah, Georgia, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) In any 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 United Cement, Lime & Gypsum
Workers International Union, A. F. of L., or any other labor organiza-
tion to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to refrain
from any and all 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, 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 :
(a) Post at its mine in Hephzibah, Georgia, copies of the notice
attached hereto marked "Appendix A." 2 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, after being
duly signed by Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof and maintained by it
for a period of not less than sixty (60) consecutive days thereafter
in conspicuous places, including- all-places where notices to employees
are customarily posted. Reasonable steps 'shall be taken by the Re-
spondent to insure that such notices are not altered, defaced, or covered
by other material;
(b) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of the receipt of this Order what
steps the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent discriminatorily dis-
charged James Brooks, Joe Burch, James J. Gray, Leonard H. Parker,
Shuman Skinner, Doctor S. Stewart, and Lester Stewart, and failed
and refused and continues to refuse to reinstate Leonard H. Parker
and James Brooks because of their membership in and activity on
behalf of the Union and because they engaged in concerted activities
with other employees for the purposes •of collective bargaining and
other mutual aid and protection.
In the event that this Order is enforced by a decree of a Court of Appeals there shall be
inserted before the words, "DECISION AND ORDER" the words, "A DECREE OF THE UNITED
STATES COURT OF APPEALS ENFORCING.'
INTERCHEMICAL CORPORATION 643
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with , restrain , or coerce
our employees in the exercise of their right to self -organization,
to form labor organizations , to join or assist UNITED CEMENT,
LIME & GYPSUM WORKERS INTERNATIONAL UNION , A. F. OF L.,
or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any and all such activities
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the
Act, as guaranteed in Section 7 of the Act.
All our employees are free to become or remain members of this
union or any other labor organization.
INTERCHEMICAL CORPORATION,
Employer.
By ---------------------------------
Dated --------------------
(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.
INTERMEDIATE REPORT
Mr. Clarence D. Musser , for the General Counsel.
Mr. William R. White, of New York City, for the Respondent.
Mr. L. T. Gourley, of Mobile, Ala ., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on February 17, 1948, by United Ce-
ment, Lime & Gypsum Workers International Union, A. F. of L ., herein called the
Union , the General Counsel of the National Labor Labor Relations Board
by the Regional Director of the Tenth Region (Atlanta, Georgia )' issued a com-
plaint dated March 23, 1948, against Interchemical Corporation , herein called
the Respondent , alleging that the Respondent had engaged in and was engaging
1 The General Counsel and his representative at the hearing are called herein the General
Counsel . The National Labor Relations Board is called the Board.
AWA DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
in unfair labor practices affecting commerce within the meaning of Section
8 (1) and (3) of Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act, and, Section 8 ( a),- (1) and ( a) (3) of the
Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136.'
Copies,of;the . complaint , the charge , and notice of.hearing were duly served upon
the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent at'its clay mine and processing plant'at Hephzibah, Georgia,
the only, plant involved in the present proceeding-; ° (1), discharge 9 named
employees on or about November 26, 1946,' and thereafter failed and refused
and continues to refuse to reinstate four of the said employees , namely James
Brooks, ILonard'H.'Parker, Newton O. Packer, and Watson Parker,' because of
their-I Membership in and activity on behalf of the Union and because they engaged
in, conc-er edIactivities with other employees for the purposes of collective bar-
gaining,and;other mutual aid and protection; and (2') by}its, officers,,agents,
and' employees,, mole particularly by A. C. Carpenter and J. H. Weatliersbee,
from November 25, 1946, to date, interrogated its employees concerning their
union affiliations and activities and threatened and warned its employees to
refrain ' from assisting , becoming members of or remaining members of the
Union. '
The Respondent's answer; duly' filed, admitted the jurisdictional allegations
of the complaint as to commerce, but denied that it had engaged in any of the
alleged unfair labor practices. The answer also asserts 'that' as soon as work
will become available it will rehire the men qualified for such work.
Pursuant to notice, a hearing was held on May 25 and 27, 1948, at Augusta,
Georgia, before the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. The General Counsel and the Respondent were represented
by counsel ; the Union by its organizer. All parties participated in the hear-
ing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence pertinent to the issues. At the
conclusion of the General Counsel's case-in-chief, the Respondent moved the
dismissal of the complaint on the following grounds : that there was no sub-
stantial evidence to show that the motive for the discharge of the nine men was
to discourage union activities ; that the General Counsel did not have authority
to issue a complaint herein because the unfair labor practices upon which the
second amended 'charge is based occurred more than 6 months prior to the filing
and service of said charge' These motions were denied. At the conclusion of
the evidence the Respondent renewed its previous motion to dismiss because of
lack of proof, which was taken under advisement and is disposed of hereinafter.
' June 23, 1947, Public Law 101, 80th Congress, Chapter 120, 1st Session. To distinguish
between the Act prior to amendment and after, the Labor Management Relations Act, 1947,
is referred to at times as the Amended Act, or the Act, as amended.
° The Respondent ' s clay mine at Hephzibah , Georgia, is a division of the Albion Kaolin
Unit of Standard Coated Products Division, one of the operating units of the Respondent.
' The employees alleged in the complaint to have been discriminatorily discharged are
James Brooks, Joe Burch , James M. Gray , Leonard H . Parker , Newton' O. Parker, Watson
Parker , Shuman Skinner , Doctor S Stewart and Lester Stewart.
5 Since the date of the issuance of the complaint and prior to the date of the hearing
herein , the Respondent reinstated Newton O. Parker and Watson Parker.
e Section 10 (b) of the Act, as amended, so far as relevant here, provides that :
. . . No complaint shall issue based upon any unfair labor practice occurring more
than six ( 6) months prior to the filing of the charge with the Board and the service of
a copy thereof upon the person against whom such charge . is made, unless the person
aggrieved thereby was prevented from fil ing such charge by reason of service in the
INTERCHEMICAL CORPORATION 645
The General Counsel and the Respondent argued orally upon the record and
were afforded the opportunity to submit briefs and proposed findings and/or
conclusions of law Briefs were received from the Respondent and the General
Counsel and have been duly considered.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Interchemical Corporation, is a corporation duly organized
under and existing by virtue of the laws of the State of Ohio, and is duly au-
thorized and licensed to do business in the State of Georgia. The Respondent
maintains its principal office at New York, New York, and operates numerous
factories, branches, and warehouses in various States of the United States, in-
cluding New York, Illinois, Ohio, New Jersey, Alabama, North Carolina, Maine,
and Georgia, where it is engaged in the manufacture, sale and distribution of
various kinds of chemical coatings for protective and decorative purposes,
printing ink, paint and industrial finishes, coated fabrics, textile coloring mate-
rials, and related products. ' In the course and conduct of its business the Re-
spbndent operates a clay mine and processing plant at Hephzibah, Georgia, where
it is engaged in the mining and processing of clay. During the year 1947 raw
materials, machinery, and supplies of a value in excess of $10,000 were purchased
and shipped to the Hephzibah plant from points outside the State of Georgia, and
for the same period the sales of clay products exceeded $100,000 more than 25
percent of which was shipped to points outside the State of Georgia. The Re-
spondent concedes that it is engaged in commerce within the meaning of the
Act.
II. THE ORGANIZATION INVOLVED
United Cement, Lime & Gypsum Workers International Union, affiliated with
the American Federation of Labor, is a labor organization which admits to
membership employees of the Respondent.
armed forces, in which event the six-month period shall be computed from the day of
his discharge.
In the opinion of the undersigned, Section 10 (b) of the Act, as amended, attached a
limitation upon the issuance of complaints, effective prospectively, not retrospectively, from
the effective date, August 22, 1947, and that as to unfair labor practices occurring prior to
that date the statute permits them to be urocessed if charges were filed and served within'
6 months after the effective date of the Act, as amended.
In the instant case the original charge was filed on December 4, 1946. In accordance
with Section 10 (b) of the Act, as amended, the Regional Director for the Tenth Region, on
June 27, 1947, sent a true and correct copy of the original charge to the Respondent by reg-
istered mail. On July 11, 1947, a copy of the first amended charge, which had been duly
filed on the said date, was sent to the Respondent by registered mail. Thereafter a copy
of the second amended charge which had been docketed on February 17, 1948, was atttached
to the complaint and served on the Respondent by registered mail on March 23, 194&
Thus, it is clear that the original and amended charges were filed and served within the
limitation period set forth in the statute and the General Counsel therefore had authority
to issue the complaint herein. The Respondent's contention that the complaint is based
only on the second amended charge and has no reference to any earlier charge and that
since the second amended charge was filed on February 17, 1948, more than 6 months after
the occurrence of the alleged unfair labor practices, therefore the complaint herein is
faulty, is without merit. The fact is that the second amended charge contains the identical
language as the first amended charge and the same was docketed and served timely on the
Respondent.
844340-50-vol. 83-42
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Commencement of union organizational activities ; interference, restraint, and
coercion ; the lay-offs of November 27, 1946
On November 23, 1946, L. - E. -Gourley, general organizer for the American
Federation of Labor, contacted several of the Respondent's employees in an
effort to interest them in union organization and arrange for a meeting. So far
as the record reveals, prior to Gourley' s efforts to interest the Respondent's em-
ployees in union organization, no -union attempted to organize them , nor does it
appear that any of the employees were members of a union.
The following day, Sunday, November'24, 1946, a me'eting'was held,on a creek
bridge, a short distance from Hephzibah, attended by Gourley and about 20 of
the Respondent's white employees. Sixteen of the employees signed applica-
tions for membership in the Union and temporary officers were elected.
On the morning of November 25, the employees reported for work about 15
minutes before their regular starting hour of 7 a. in., as was their custom, and
gathered around the heater in the mechanic's shop. Present were a group of
employees, some of whom had attended the union meeting, and J. $. Weathers-
bee, the Respondent's head mechanic. A general conversation ensued regard-
ing the union meeting of the previous day. Weathersbee asked several of the
employees if they had joined the Union, and upon being advised that they had,
he remarked, "before Mr. Carpenter [the Respondent's assistant superintendent]
would operate under a union, they would fire every man that-was there and hire
a new crew." Weathersbee also advised the men generally that they had better
leave the Union alone and upon being told that the men had paid a $5 initiation
fee to join the Union, stated that the union organizer needed some money and
that was the only means he had of obtaining it.'
Later that morning Allie J. Carpenter, the Respondent's assistant superintend-
ent, while walking through the blacksmith shop, stopped to talk with George W.
Burch, a repair man of clay cars. Carpenter asked Burch if he had attended
the union meeting the day before. Burch said that he had. Thereupon Car-
penter said "George, you fellows that attended union meeting , drop by the office
this evening and get your time." Burch did not follow Carpenter's instruction,
and continued to work, testifying that he saw Carpenter later the same day, that
Carpenter was in better humor, and he merely passed off Carpenter's previous
remark to him.
' It is the contention of the General Counsel that Weathersbee was a supervisory employee.
Thus the General Counsel adduced testimony that employees went to him for advice on how
to proceed with jobs and took orders from him as to which trucks to take out, or to transfer
to in case of a breakdown. The Respondent testified that its supervisory hierarchy consists
solely of Superintendent Lamar and Assistant Superintendent Carpenter. Because of the
large area covered by the mine, Carpenter testified that he sends orders through keymen to
the separate groups of men working at different locations. As such, Weathersbee gives
orders to the truck drivers and employee Gale to the shovel crews Weathersbee is an
hourly paid employee who spends practically all of his time on production as head machinist,
except on the occasion when he is authorized by either Carpenter or Lamar to act for either
or both of them, when they are away from the mine He does not have the power to hire,
fire, or recommend disciplinary action to be taken against employees, nor, according to
Carpenter, has he ever done so. Carpenter's uncontroverted testimony in this regard is
credited. The undersigned finds that Weathersbee is not a supervisory employee. With
respect to the anti-union and coercive statements made by Weatherebee during the general
discussion of the Union by the employees, there is no proof that they were authorized or
ratified by the Respondent. Nor is it clear that the employees considered such remarks
as reflecting the Respondent's point of view. The undersigned therefore finds that they are
not attributable to the Resnondent.
' INTERCIIEMICAL CORPORATION 647
At quitting time on November 26, Carpenter told 10 employees that he had
to lay them off, that they would not have to work the next day but should return
to^'the mine the following evening for their pay 8 Gray and Skinner testified
that Carpenter told them that they'Were being laid off because the. Respondent
had to do some repair work on its #1 Diesel shovel. Thomas Watson Parker
and Leonard Parker testified that Carpenter told them they were being laid off
because there was a railroad strike and the Respondent could not get sufficient
cars'to'ship its'clay. Newton O•. Parker, the father,of Thomas and Leonard
Parker, was told that he.-was, beipg•laid off because with tpe lay-off of his sons
he would not have a conveyance to get to work. Lester Stewart testified that
Carpenter told him only that he was included in the group that had to be laid off.
Several weeks later when he sought reinstatement from Carpenter he testified
that Carpenter told him that he was unable to get springs for the truck. Doctor
Stewart testified that he was told he was being laid off because of repair work
that had to be done on the air compressor. James Brooks testified that Car-
penter told him he was included on the list to be laid off and was told by Car-
penter that he might obtain some work at the Arsenal.
When the'employees questioned Carpenter concerning the expected duration
of the lay-off, they were given an indefinite answer and told that it might be
6 months or a year.
The following morning, upon being informed of the discharge of the 10 em-
ployees, Gourley talked with George Lamar, the Respondent's superintendent,
and was told that the lay-offs were due to necessary repairs to equipment. After
some further conversation during which Gourley told Lamar that he thought it
was very strange that all union members were laid off,' Lamar answered that he
felt the Respondent was capable of taking care of its own business. Lamar de-
clined to honor Gourleys' request that the laid-off employees be reinstated.
At 5 p. in. on November 27, in accordance with previous instructions, the laid-
off employees reported at the mine office for their pay. They were paid in full
for the week ending November 27, as'well as for the 3 days which had been with-
held during the period of their employment, as was customaryl° James Brooks
asked Lamar for separation notices for himself as well as for the other laid-off
employees. Lamar said that he had not prepared them and could not do so then,
but would mail them to the employees the next day Upon Brooks' insistence,
Lamar had them prepared and distributed. After a few minutes Lamar asked
several of the employees to return the notices of separation to him and in the
cases of Leonard W. Parker, Shuman Skinner, and James Brooks, changed the
item checked as the reason for separation, from "discharge" to "lack of work
only." All of the notices of separation contained the statement in the detailed
explanation of the reason for separation, "equipment shut down for repairs."
'Gourley held a meeting with the laid-off employees on November 27 when he
told them that he had talked with the Respondent about the lay-offs but that
8Included in the group of 10 who were laid off were the 9 employees alleged in the com-
plaint to have been discriminatorily discharged
9 The record does not reveal that all of the laid-off employees were members of the Union.
In fact, of the 10 employees who were laid off on November 26, James Braswell, not alleged
in the complaint to have been discriminatorily discharged, did not testify at the hearing
heiein, nor did Joe Burch. It is not known, therefore, whether these 2 men were members
of the Union. Skinner testified that he was not a member of the Union.
10 Lamar explained that the Respondent's workweek runs from Monday through Saturday
and pay day was on Wednesday for the preceding week. The final pay of the laid-off
employees included wages for Wednesday, November 27, even though they did not work
that day.
648 DECISIONS OFVXATIONAL LABOR -RELATIONS BOARD
the Respondent refused to put'them back to work. Despite this, Gourley ad-
vised them to report for work on Friday morning (Thursday being Thanksgiving
Day)'as though nothing had happened, and it was his thought that the,Respond-
ent 'might 'reconsider its decision at that time. The employees reported for
work as iisual'on Friday morning, November 29; and told Carpenter that they
were doing so upon the advice of the union organizer. Carpenter remarked, in
effect, that the union man did not have a thing to do with the Respondent's plant,
and that he was getting his orders from Lamar. Carpenter gave all -of the laid-
off employees typewritten recommendations, which set forth that the named em-
ployee was released from the Respondent's employ "on account of working con-
ditions and 'repairs to machinery" and that his work was absolutely, satisfactory.
Carpenter told the men to keep in contact with him, and that if he could assist
them in getting jobs elsewhere, to call on him"
Seven of the nine alleged discriminatorily discharged employees were rein-
stated to their jobs by the Respondent on various dates between February 17,
1947, and May 17, 1948, as will be discussed hereinafter.
B. The contentions concerning the lay-offs of November 27, 1946, and the inter-
ference, restraint, and coercion ;' conclusions
The General Counsel contended that the alleged needed repairs to the #1
Diesel shovel were seized upon by the Respondent as a pretext for the lay-offs
and that this was borne out by the fact that in assigning reasons for the lay-offs
of the various employees, the Respondent was inconsistent, telling some that the
lay-off was due to necessary repairs to the shovel, and others that there was a
lack of boxcars for the shipment of clay, and still others of its inability to obtain
repair parts for truck, and, in the case of Newton Parker, that he did not have
a conveyance to get back and forth from the mine.
It is the further contention of the General Counsel, that whereas in the past,
whenever the Diesel shovel was shutdown for repairs, no employees were laid
off, therefore, the action of the Respondent in laying off its employees on Novem-
ber 26, was merely a pretext for laying off employees who were members of the
Union. Thus, evidence was adduced to show that in October 1946 the #1 Diesel
shovel was shut down for repairs for approximately 1 week, and that during
this period of the shovel shut-down, the employees who either worked on the
shovel, such as the operator and oiler, or those who serviced the shovel, such as
the truck drivers, truck spotters, and air compressor operators, were shifted to
service #2 Diesel shovel or were assigned to assist in the repairing of
the #1 shovel.
The General Counsel also contended during the hearing that the fact that the
Respondent paid off its employees in full when they were laid off, and checked
as the reason for separation the item "discharged" rather than "lack of work
only" on several of the separation notices, was proof that it had every intention
to discharge rather than temporarily lay-off these employees. Also the proximity
of the lay-offs to the union meeting was further indicia of the Respondent's desire
to rid itself of the Union and of those employees who were members of the Union.
The Respondent, on the other hand, contended that the men were laid off only
because of the necessary shut-down of the #1 shovel for repairs. Thus Lamar
testified credibly and without contradiction that the repairs to the #1 Diesel
shovel had been contemplated since May 9, 1946, at which time it was discussed
21 Carpenter's testimony in this regard, which is uncontradicted, is credited.
INTERCHEMICAL CORPORATION 649
with Carpenter and J. P. Broadbent, general manager of the Albion Kaolin Unit
of the Respondent, who was on a periodic visit to the mine. On that occasion
Carpenter brought up the general state of disrepair of the #1 shovel and it was
Broadbent's advice that the shovel be repaired as quickly as possible, but that
it be kept running until a backlog of clay was uncovered and stored in order
to hold Respondent over any shut-down period that might be necessary to make
repairs, or until the bad weather set in, for the reason that it cost the Respondent
about a third more to operate the shovel during the winter months than during
the ordinary dry weather. In July 1946, Carpenter again talked with Lamar
about the condition of the #1 shovel, stating that he was afraid it would break
down, but that he would continue to run it as long as possible to get enough clay
uncovered. Lamar further testified that on or about November 20, 1946, he
talked with Broadbent in the Respondent's New York office, advising the latter
that a sufficient amount of clay had been uncovered to carry the Respondent
through the period that might be required for repairing theeshovel ; that it was
facing a serious boxcar shortage and was unable to obtain cars in which to ship
clay and had to resort to truck shipments at increased expense ; that the coal
strike was on, making it appear that business would not be too good ; and that
it had just received parts for the repair of the shovel.32 Broadbent ordered
Lamar to shut down the #1 Diesel shovel on November 26, which was the
regular pay day for the men.
Furthermore, the Respondent denied that it had knowledge as to which of
its employees were union members. Lamar's uncontroverted, credible testimony
is that he did not know that any of the laid off employees were union members or
had been active in its organization. He stated that the first definite information
he had of the Union's existence was on November 27, when Gourley talked with
him about the lay-offs.
Carpenter testified that while in Hephzibah on Saturday afternoon, Novem-
ber 23, Frank Gray, a shovel operator for the Respondent, and a constable of
the Village of Hdphzibah in his off hours, told him that some man was going to
have a union meeting the following day. Gray did not mention the names of
any employees who would attend. Carpenter stated this was the first time he
heard of any efforts at union organization at the mine and "laughed it off as some-
thing funny." Carpenter testified further that on the morning of November 25,
while he was walking through the machine shop, he heard Skinner and George
Burch discussing the union meeting of the previous day. Carpenter admitted
that he then asked George Burch if he joined the Union, and upon being advised
that he had, told him to stop by the office to get his time. Carpenter walked on
through the shop and there is no evidence that he questioned any other employees
regarding their union affiliations or that he made any similar remarks, of any
other threatening, coercive, or anti-union statements to any other employees prior
to the lay-offs. Carpenter's testimony in this regard which stands uncontradicted
in the record, is credited.
It appears clear from the record that the #1 shovel was shut down for repairs
from November 27, 1946, to on or about January 28, 1947 ; that at about this same
time the Respondent had at least 6 months of overburden removed from its clay
deposits, giving it access to a 6 months supply of clay. It is also clear that all
12 An exhibit in evidence reveals that on August 12, 1946, Respondent ordered repair parts
from the Marion Steam Shovel Company, Marion , Ohio, requesting immediate delivery.
It did not receive the parts so ordered until October 5, 1946, and November 26, 1946, and
on several dates thereafter.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the laid-off employees were generally assigned to some work in connection
with the #1 shovel. Lamar testified that he and Carpenter agreed to reinstate
the laid-off employees, if they could do the job required, before any new employees
were. hired. The record reveals that the Respondent did not hire any new
employees to take the jobs of those laid off, with one exception, I. e., a waterboy
was hired on June 2, 1947.
In explanation of the reason for paying off the laid-off men in full," Lamar
testified that the work week at the mine runs from Monday through Saturday,
with spay day on Wednesday for the preceding week's work. Maurice D. Cleary,
the Respondent's director of industrial relations, testified that it is the Re-
spondent's policy to pay laid-off or discharged employees in full and immediately
remove them from the pay roll, for the reason that in a group insurance contract
that the Respondent maintains for the benefit of its employees, paid jointly by
the Respondent and the employees , if an employee is not removed from the
pay roll and subsequently does not pay a premium, the Respondent becomes
liable for such premium payment because the employee's name is continued on
the pay roll. In order to avoid such liability the name is immediately removed
upon lay-off or discharge. Lamar's testimony and Cleary's explanation are
credited.
Lamar admitted that when he first handed out the notices of separation to
the laid-off men, the item "discharged" was checked as the reason for separation.
He testified that when Carpenter came into the office and saw that one of the
notices contained the item "discharged," Carpenter called to his attention the
fact that the men were being laid off and not discharged. Lamar then asked
several of the employees to return the notices for correction and they were so
corrected. Lamar's uncontroverted testimony, which was corroborated in sev-
eral respects by the General Counsel's witnesses, is credited.
True, the sudden lay-offs on November 26, only 2 days after the first union
meeting of the Respondent's employees, suggest a more than casual relation-
ship between such union activity and the lay-offs. Another factor which tends to
impugn the Respondent's motive in the lay-offs is Carpenter's statement to
Skinner upon the latter's request for reinstatement about 4 weeks after the
lay-offs, that he (Carpenter) could not lay off only employees who joined the
Union unless he laid off somebody else.' While these factors smack suspiciously
of a discriminatory intent on the part of the Respondent to rid itself of the
Union and of those employees who were union members, matters of this kind
may not be decided on suspicion, surmise and feeling, rather than on evidence.
The question here is whether the Respondent actually was motivated by the?
union affiliations and activities of its employees when it decided on a lay-off
and in selecting the employees to be laid off. From the record as a whole it
cannot be said that the lay-offs were unnecessary as a matter of business ex-
pediency. Furthermore, other than Carpenter's admission that he questioned
George Burch as to his union membership and allegedly in jest told him to
report to the office for his pay,3° the General Counsel did not prove that the
Respondent had knowledge of which employees were union members prior to
18 Newton 0. Parker was a waterboy prior to his lay-off and was not reinstated until May
17. 1948, the same day that his son Watson was reinstated.
14 As heretofore noted, the Respondent customarily withheld 3 days pay.
18 Carpenter's conversation with Skinner prior to his reinstatement on February 17, 1947,
is discussed more fully in the following section and therein found to be violative of the Act.
18 George Burch, as found hereinabove, did not comply with Carpenter's instructions and
testified that when later that day Carpenter appeared in better humor, he passed off the
previous remark . George Burch was not laid off by the Respondent.
INTERCHEMICAL CORPORATION 651
their lay-offs. Upon an analysis of the entire record," especially in view of the
economic necessity for the lay-offs, and the fact that all of the laid-off employees
were generally connected in servicing the shut-down shovel, the undersigned
is unable to conclude that the General Counsel has established by substantial
evidence that the Respondent was motivated by an illegal purpose in laying off
the employees alleged in the complaint to have been discriminatorily discharged
and it will accordingly be recommended that the said allegation of the com-
plaint be dismissed.18
The complaint also alleges that the Respondent, by its officers, agents, and
employees, more particularly by A. C Carpenter and J. H. Weathersbee, from
November 25, 1946, or thereabout, to date, has interrogated its employees con-
cerning their union affiliation and activities and has threatened and warned its
employees to refrain from assisting, becoming members of, or remaining members
of the Union. As heretofore found, Weathersbee was neither a supervisory
employee, nor was he an agent of the Respondent when, during the course of a
general union discussion with other employees he made several anti-union state-
ments, which were not attributable to the Respondent. However, Carpenter's
questioning of George Burch concerning his union membership was per se
violative of the Act,19 and the undersigned finds that the Respondent by such
conduct interfered with, restrained, and coerced its employees in violation of
the Act.
C. The reinstatements; other interference, restraint, and coercion
Within a short period after the Respondent placed its #1 Diesel shovel back
in operation, it began to reinstate the laid-off employees, in accordance with the
policy testified to by Lamar. All of the laid-off employees were reinstated from
February 17, 1947, to May 18, 1948, with the exception of Leonard H. Parker and
James Brooks. As heretofore found, Carpenter instructed the laid-off employees
on November 29, 1946 to keep in contact with him regarding reinstatement.
Cleary testified without contradiction that the Respondent has no seniority rules
in effect with respect to hiring laid-off employees but does so on the basis of
efficiency and physical fitness. The record reveals that the majority of the
reinstated employees complied with Carpenter's instructions, and did so keep in
touch with Carpenter before they were rehired. Leonard H. Parker has been
farming since his lay-off and has not sought reemployment. James Brooks like-
wise never applied for reinstatement.20 Under all of the circumstances the
14 The undersigned has also considered the General Counsel's contention raised in his
brief that there were a disproportionate number of union members included in the lay-off.
The record reveals that, a total of 24 employees serviced the shovels and 16 of this group
were union members Ten employees or 41 6 percent were laid off ; 41 . 6 percent of 16 Is
6.65 Included in the lay -off were 7 union members. Can it therefore be said that this was
a disproportionate number of union men laid off ? The undersigned does not think so and
finds the contention to be without merit
11 See N. L. R. B. V. Goodyear Tire & Rubber Co., 129 F. (2d) 661 (C. C. A. 5) ; Matter of
The Hays Corporation, 64 N. L. R B 406; Matter of Capital City Candy Company, 71
N. L. R B. 447.
10 Actual coercion of employees is immaterial to finding of conduct proscribed by Section
8 (1) of the Act . See Matter of Sewell Manufacturing Company, 72 N. L . R. B. 85; See
also Matter of Morrison Turning Co., Inc., 77 N. L. R. B. 670; Matter of Ames Spot Welder
Co. Inc., 75 N . L. R. B 352. With respect to questioning of employees regarding their union
status allegedly in jest, see Matter of Fairmont Creamery Co., 73 N. L. R. B. 1380 , aff'd July
14, 1948 (C. C. A. 10), 169 F. (2d) 169
20 On the day of the lay -offs, Brooks was arrested as a result of an altercation with another
employee on the mine premises and for that reason never applied for reinstatement.
,652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undersigned finds that there was no duty on the Respondent to reinstate the
laid-off -employees without their prior application. Although as hereinafter
found, the Respondent did display an anticunion animus when Carpenter inter-
viewed. several union members who applied for reinstatement there is no evidence
that their, membership in the Union was a criterion considered in their reinstate-
ment. , The undersigned therefore finds that the Respondent did not refuse to
reinstate Leonard H. Parker or James Brooks because of their union membership
or activities.
Subsequent to the lay-offs, Carpenter, by his own admissions, learned con-
siderably more regarding the prior union activity around the mine, he claimed,
as a result of talk among the employees.
James Gray saw Carpenter on several occasions in his efforts to obtain rein-
statement. Gray testified that when he saw Carpenter at the mine a week
before his reinstatement on March 1, 1947, Carpenter said "James, don't never
fool with no more unions because the company won't stand to work under union.
They would shut the plant down before they would work under union."
Carpenter, testifying in contradiction to Gray's version of the conversation,
stated that the,told Gray he thought he could use him in about a week, but that
he wanted him to get one thing straight and that was that he was not to bring the
union business on the job during working hours. Carpenter explained that he
learned after the lay-offs. as a result of conversation around the mine, that some
of the employees had been stopping trucks and discussing the Union during
working hours, and that he was in effect warning Gray that he was not to carry
on union affairs or discuss the Union during working hours. Carpenter denied
that the Respondent did not want a union. Carpenter's version of this conver-
sation with Gray is not credited.
Lester Stewart, who saw Carpenter prior to his reinstatement on February 18,
1947, testified that Carpenter told him to come on back to work and to "keep my
mouth shut about a union, that mess was about squashed" ; Lester Stewart testi-
fied further that Carpenter said that the Respondent was not going to allow a
Union and that Carpenter wouldn't work at the mine if there was a Union.
Carpenter, testifying regarding his version of the conversation with Stewart,
stated that after telling him to report back for work the following Monday, he
said "but, now, Lester, I want to impress on you one thing when you come down
here and go back to work, I don't want any of this on the job out there discussing
the Union. Get that under your hat." He denied that he told him that the
Respondent did not want a Union. 0
Junior Barton, an employee of the Respondent, and a nephew of Lester Stewart,
who was present during the conversation, corroborated Lester Stewart's testi-
mony. The undersigned credits Lester Stewart's testimony and finds that the
conversation between him and Carpenter took place substantially as testified to
by Lester Stewart.
Shuman Skinner was reinstated on February 17, 1947. He testified that in
a conversation with Carpenter prior to his reinstatement, he told Carpenter that
he did not have anything to do "with this union business" and did not know why
he was laid off. Carpenter, according to Skinner said "Well, I found out you
didn't have any connection with it and I will put you back to work as quick as
I can but I haven't got anything now." Skinner testified further that Carpenter
told him he could not lay off only employees who joined the Union unless he laid
off somebody else. Carpenter testified that when Skinner told him he was not
a member of the Union, he replied, "Shuman, I can't help that,, whether you
did or not. I don't know anything about who belonged to the Union and who
INTERCHEMICAL CORPORATION 653
did not." He admitted that he told Skinner he had been advised that Skinner
had not joined the Union but added that he stated that that did not make any
difference . He denied that he told Skinner he could not lay off union men
without laying off non-union men as well. Even though the undersigned in
heretofore dismissing the allegations of the complaint that the Respondent dis-
criminatorily discharged certain named employees, found that Carpenter did not
then have knowledge as to which of the laid-off employees were union members,
nevertheless, the undersigned is convinced that subsequent to the lay-offs, when
Carpenter learned the extent of the union activity at the mine, he made the
statements attributed to him by Skinner, in his endeavor to coerce Skinner re-
garding future union membership and activity. The undersigned credits the
testimony of Skinner and finds that the conversation between Skinner and Car-
penter prior to Skinner's reinstatement took place substantially as testified to by
Skinner.
The undersigned finds that by the statements and conduct of Carpenter subse-
quent to the lay-offs and in connection with the applications for reinstatement
of the above-noted employees, the Respondent interfered with, restrained, and
coerced its employees in violation of Section 8 (1) of the Act as reenacted in
Section 8 (a) (1) of the amended Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as has been found to be unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violat-
ing Section 8 (1) of the Act as reenacted in Section 8 (a) (1) of the amended
Act, the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found further that the allegations of the complaint that certain em-
ployees were discharged and thereafter refused reinstatement because of their
membership in and activity on behalf of the Union and because they engaged in
concerted activities with other employees for the purposes of collective bargain-
ing and other mutual aid and protection, are not supported by substantial evi-
dence, it will be recommended that the complaint be dismissed as to these
allegations.
On the basis of the foregoing findings of fact and upon the entire record, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. United Cement, Lime & Gypsum Workers International Union, A. F. of L.,
is a labor organization 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 Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act as reenacted in Section 8 (a) (1) of the Act, as amended.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
•• 4. The Respondent has not engaged in unfair labor practices within the mean-
ing,of Section 8 (3) of the Act, as reenacted in Section 8 (a) (3) of the Act, as
amended, by laying off James Brooks, Joe Burch, James J. Gray, Leonard H.
Parker, Newton O. ;Parker, Watson Parker, Shuman Skinner, Doctor S. Stewart,
and Lester Stewart and by not reinstating James Brooks and Leonard H. Parker.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, the undersigned recommends that Respondent,
Interchemical Corporation, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) In any 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 United Cement, Lime & Gypsum Workers International Union, A. F.
of L., or any other labor organization to bargain collectively through representa-
tives 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 Sec-
tion 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Post at its mine in Hephzibah, Georgia, copies of the notice attached hereto
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Tenth Region, after being duly signed by Respondent's repre-
sentative shall be posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of not less than sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps should be taken by the Respondent to
insure that such notices are not altered, defaced, or covered by other material ;
(b) Notify the Regional Director for the Tenth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps
the Respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the Respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the Respond-
ent to take the action aforesaid.
It is further recommended that the complaint be dismissed insofar as it al-
leges that the Respondent discriminatorily discharged James Brooks, Joe Burch,
James J. Gray, Leonard H. Parker, Shuman Skinner, Doctor S. Stewart, and
Lester Stewart, and failed and refused and continues to refuse to reinstate
Leonard H. Parker and James Brooks because of their membership in and ac-
tivity on behalf of the Union and because they engaged in concerted activities
with other employees for the purposes of collective bargaining and other mutual
aid and protection.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, any party may, within
twenty (20) days from the date of service of the order transferring the case
to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Rochambeau Building, Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report or to any other part of the record or proceedings (including rul-
INTERCHEMICAL CORPORATION 655
ings upon all motions or objections) as he relies upon, together with the original
and six copies of a brief in support thereof; and any party may, within the same
period, file an original and six copies of a brief in support of the Intermediate
Report. Immediately upon the filing of such statement of exceptions and/or
briefs, the party filing the same shall serve a copy thereof upon each of the
other parties. Proof of service on the other parties of all papers filed with the
Board shall be promptly made as required by Section 203.85. As further pro-
vided in said Section 203.46, should any party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board within
ten (10) days from the date of service of the order transferring the case to the
Board.
In the event no Statement of Exception is filed as provided by the aforesaid
Rules and Regulations , the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings, conclusions,
and order, and all objections and exceptions thereto shall be deemed waived for
-all purposes.
SIDNEY LINDNER,
Trial Examiner.
Dated July 30, 1948.
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, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor organi-
zations, to join or assist UNITED CEMENT, LIME & GYPSUM WORKERS INTER-
NATIONAL UNION, A. F. of L., or any other labor organization, 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. All our employees are free to become or remain
members of this union, or any other labor organization.
INTERCHEMICAL CORPORATION,
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.