The Summers Fertilizer Co., Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1957

117 N.L.R.B. 243 (N.L.R.B. 1957)

THE SUMMERS FERTILIZER COMPANY, INC. 243
(d) as to whom the Trial Examiner recommends that the complaint be dismissed.
Sarah Barnes Mary Gall
Shirley Barnett Margaret Geordt
Florence Champlin * Maxine Watson
Doris L. Chippi
a Florence Champlin was rehired as a new employee on October 6, 1952, but had quit
before the close of the hearing because she and her husband moved to Akron. So far as the
record shows , none of the other persons named in this appendix have been rehired by the
Respondent even as new employees.
The Summers Fertilizer Company, Inc. and American Federation
of Labor-Congress of Industrial Organizations and the Com-
mittee, Party to the Contract
Northern Chemical Industries, Inc. and American Federation of
Labor-Congress of Industrial Organizations and The Com-
mittee, Party to the Contract . Cases Nos. 1-CA-2008 and
1-CA-3031. January 31,1057
DECISION AND `ORDER
On May 21, 1956, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and supporting briefs.
The Board 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications
and exceptions.
1. The Trial Examiner found that the Respondents Northern and
Summers dominated the formation of the Committee at their respec-
tive plants and assisted and contributed financial and other support
to these Committees in violation of Section 8 (a) (2) and (1) of the
Act. We agree with the Trial Examiner insofar as he finds unlawful
assistance to, and support of, these Committees but not domination.
In finding that the Respondent Northern unlawfully dominated the
Northern Committee, the Trial Examiner relied principally on the
fact that Rivers, Ellis, and Plourde, whom he found were supervisory
employees, participated in the formation of this Committee. We,
1 We have carefully examined the record and find no merit in the Respondents ' allegations
of bias and prejudice on the part of the Trial Examiner.
117 NLRB No. 34.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, are not persuaded that the evidence in the record establishes
that these employees possessed the requisite authority to constitute
them supervisors within the meaning of the Act. The record dis-
closes that they did not have the authority to hire, discharge or disci-
pline employees, or to make effective recommendations in this regard
or responsibly to direct employees. At most, it appears that Rivers,
Ellis , and Plourde worked under the supervision of Assistant General
Manager Moynihan and his assistant, Sawyer, transmitting routine
instructions to other employees. In these circumstances, we find, con-
trary to the Trial Examiner, that Rivers, Ellis, and Plourde were not
supervisors for whose acts the Respondent Northern was liable.
With respect to the Committee at the Summers plant, the Trial
Examiner based his finding of domination chiefly on the fact that the
Respondent Summers imposed a contract on its employees. In our
opinion, the circumstances surrounding the negotiation of this con-
tract are insufficient to warrant a finding of domination of the Sum-
mers Committee.
However, notwithstanding our disagreement with the Trial Ex-
aminer's findings of domination, we agree that the Respondents gave
unlawful assistance and support to the Committees. As discussed in
the Intermediate Report, after talking to Litty, the vice president and
general manager of both Respondents, and Moynihan, the assistant
general manager of both plants, about a wage increase, the Northern
employees were permitted by Moynihan to use company property and
time to organize the Northern Committee and to hold other committee
meetings. Indeed, Moynihan secured Northern's payroll in order to
learn the names of employees not then on duty at the plant and sent
two employees to notify them to come to a scheduled meeting to de-
termine whether the employees wanted "a company union or not." All
employees, whether on or off duty, were paid for time spent in attend-
ing this and other committee meetings.' Further evidence of unlawful
assistance is revealed in the fact that Litty vested the Northern Com-
mittee with authority which amounted to a veto power over the re-
employment of strikers whom Litty had discharged for engaging in
the strike called by the UMW.
As in the case of the Northern plant, the Summers employees were
also permitted to form a Committee on company time and property
and were compensated for time spent in organizing the Committee
and attending committee meetings. In fact, for a 2-day period em-
9 We, however , do not adopt that part of the Trial Examiner's finding that payment for
time spent by the Committees in negotiations with the Respondents , as distinguished from
time spent in organizing the Committees and attending committee meetings , constituted
assistance and financial support prohibited by Section 8 (a) (2) of the Act. Aerovox Cor-
poration , 102 NLRB 1526 , 1528, enfd . 211 F. 2d 640 (C. A., D. C.) ; Ephraim Haspel, 109
NLRB 37 , enfd 228 F. 2d 155 ( C. A. 2) ; Nutone, Incorporated, 112 NLRB 1153 , 1155, 1170,
enfd. as modified, U S. Court of Appeals for the District of Columbia, November 23, 1956,
39 LRRM 2103.
THE SUMMERS FERTILIZER COMPANY, INC. 245
ployees performed practically no work but attended meetings to con-
sider General Manager Litty's contract proposals, without suffering
any loss of pay.
That the Respondents intended to use these Committees as a means
of frustrating the efforts of the Charging Union and the UMW to rep-
resent the employees is clearly indicated by the hasty recognition ac-
corded the Committees, after the UMW's request for recognition was
summarily rejected, and by the ensuing contract negotiations. Thus,
when the group of nine Northern employees presented Litty with a
document which merely stated that "We, the undersigned, agree to the
formation of our own representatives bargaining committee appointed
from the men" of the Northern plant, Litty, without any specific re-
quest for formal recognition, prepared a statement, which he handed
the group, recognizing the "Committee" consisting of the nine named
employees, as "the exclusive bargaining agent of" Northern's em-
ployees and proceeded to negotiate a contract with the Committee.
Similarly, Litty drafted an unsolicited statement, which he gave to the
four Summers employees, recognizing them as the representative of the
Summers employees and immediately entered into negotiations. In
fact, after Litty presented his contract proposals to the Summers
Committee, Assistant Manager Moynihan and a foreman attempted to
force the employees to accept the contract proposals by threatening a
plant shutdown if they refused to do so.
Accordingly, we find that the assistance and support thus given the
Northern and Summers Committees violated Section 8 (a) (2) and (1)
of the Act.3
2. We agree with the Trial Examiner that the Respondents, in vio-
lation of Section 8 (a) (3) and (1) of the Act, discriminatorily dis-
charged the 20 named employees for engaging in the strike called by
the UMW. Like the Trial Examiner, we find, contrary to the Re-
spondents' contention, that the no-strike clause in their contracts with
the Committees did not protect the discharges because the contracts
were made with unlawfully assisted unions and were therefore
invalid."
THE REMEDY
Having found that the Respondents have violated Section 8 (a) (1),
(2), and (3) of the Act, we will order, that they cease and desist there-
from and take certain affirmative action designed to effectuate the
policies of the Act.
2In view of our determination herein, we find it unnecessary to pass upon the Trial
Examiner's finding that the Respondent Northern independently violated Section 8 (a) (2)
and (1 ) of the Act by entering into a contract with the Northern Committee at a time when
the UMW claimed majority representation.
a Cf. H. N. Thayer Company, 99 NLRB 1122, 1131, enforced and remanded in part on
other grounds, 213 F. 2d 748 (C. A. 1).
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that the Respondents have unlawfully assisted and
contributed financial and other support to the Committees, but did not
dominate their formation. Therefore, in accord with Board policy,
we shall order the Respondents to withdraw and withhold all recog-
nition from the Committees, unless and until the Committees have
been certified by the Board as the collective-bargaining representa-
tives of their employees. We shall also order the Respondents to cease
and desist from giving effect to any contracts or agreements with the
Committees. However, the Respondents are not hereby required to
vary the wages, hours, or other conditions of employment heretofore
established.
The Trial Examiner also recommended that the Respondents be
directed to offer reinstatement to the 20 discharged employees and
make them whole for any loss of pay they may have suffered since the
date of their discharge, by reason of the Respondents' discrimination
against them. The record shows that the dischargees were on strike
at the time of their discharge and continued to picket for about a week
thereafter. Therefore, in accordance with Board policy, we shall
award them back pay from the date they indicated that they had given
up the strike and were available for reemployment-rather than from
the date of discharge-to the date of the Respondents' offer of
reinstatement.'
We shall also order the Respondents to cease and desist from in any
other manner infringing upon their employees' rights guaranteed in
Section 7 of the Act. We find that such order is necessary to satisfy
the remedial objectives of the Act because the unfair labor practices
reveal an attitude of opposition to the purposes of the Act.
ORDER
Upon the basis of the entire record in this case, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondents,
The Summers Fertilizer Company, Inc., Sandy Point, Maine, and
Northern Chemical Industries, Inc., Searsport, Maine, their officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization of their
employees, by discharging, refusing to reinstate, or in any other man-
ner discriminating in regard to their hire or tenure of employment or
any term or condition of employment, except to the extent permitted
by Section 8 (a) (3) of the Act.
5Knickerbocker Plastic Co., Inc., 104 NLRB 514, 540, enforced 218 F. 2d 917 (C. A. 9) ;
Buzza-Cardozo , 97 NLRB 1342 , 1344, enforced 205 F. 2d 889 ( C. A. 9) ; Kallaher and Mee,
Inc., 87 NLRB 410, 413.
THE SUMMERS FERTILIZER COMPANY, INC. 247
(b) Recognizing the Committees as the representatives of any of
their employees for the purpose of collective bargaining with respect
to grievances, labor disputes, wages, rates of pay, hours of employ-
ment, and other conditions of employment, unless and until such or-
ganizations shall have been certified by the Board.
(c) Giving effect to any and all agreements and contracts, supple-
ments thereto or modifications thereof, or any superseding contracts
with the Committees, or their successors, unless and until such organi-
zations shall have been certified by the Board.
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization,
to form, join, or assist any labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activi-
ties, 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.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer employees Warner Hamilton, Norman D. Lohr, Maynard
Farnham, Sheldon A. Leighton, William P. Warman, Clinton F.
Holmes, Howard Bull, Edwin Hamilton, Nelson Pain, Bruce G. Mills,
Walter F. Clark, Ronald Holmes, Maxwell Payne, Kenneth E. Lyford,
Raymond Webster, William Swift, Charles Elden, Albert Gamble,
Alphonse Hazelton, and Hilton Plummer immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights and privileges, and
make them whole for any loss of pay they may have suffered as a
result of the discrimination, in the manner set forth in the section of
this Decision and Order entitled "The Remedy."
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(c) Withdraw and withhold all recognition from the Committees
as the representatives of any of the Respondents' employees for the
purpose of collective bargaining with respect to grievances, labor dis-
putes, wages, rates of pay, hours of employment, and other conditions
of employment, unless and until said organizations shall have been
certified by the Board.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
' (d) Post at their plants in Searsport and Sandy Point, Maine,
copies of the notice attached hereto marked "Appendix." 6 Copies
of said notice, to be furnished by the Regional Director for the First
Region, shall, after being duly signed by the Respondents' representa-
tive or representatives, be posted by the Respondents immediately
upon receipt thereof and maintained by them for sixty (60) consecu-
tive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, as to what steps the
Respondents have taken to comply herewith.
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."
APPENDIX
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, as amended, we hereby notify our employees that:
WE WILL NOT recognize the Committees as the representatives
of any of our employees for the purpose of collective bargaining
with respect to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless
and until said organizations shall have been certified by the
National Labor Relations Board.
WE WILL NOT give effect to any and all agreements and contracts,
supplements thereto or modifications thereof, or any superseding
contracts with the Committees or their successors, unless and
until such organizations shall have been certified by the National
Labor Relations Board.
WE WILL NOT discourage membership in any labor organization
of our employees, by discharging, refusing to reinstate, or in
any other manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment, except
to the extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form, join, or assist any labor organization, 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
THE SUMMERS FERTILIZER COMPANY, INC. 249
from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership
in a labor organization, as authorized in Section 8 (a) (3) of
the Act.
WE WILL offer to the employees listed below immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any
loss of pay they may have suffered by reason of our discrimina-
tion against them :
Warner Hamilton Raymond Webster
Norman D. Lohr William Swift
Maynard Farnham Bruce G. Mills
Sheldon A. Leighton Walter F. Clark
William P. Warman Ronald Holmes
Kenneth E. Lyford Maxwell Payne
Clinton F. Holmes Charles Elden
Howard Bull Albert Gamble
Edwin Hamilton Alphonse Hazelton
Nelson Pain Hilton Plummer
All our employees are free to become, remain , or to refrain from
becoming or remaining , members of any labor organization except
to the extent that this right may be affected by an agreement au-
thorized by Section 8 (a) (3) of the Act.
THE SUMMERS FERTILIZER COMPANY, INC.,
Employer.
Dated ---------------- By ------------------------------------
(Representative ) ( Title)
NORTHERN CHEMICAL INDUSTRIES, INC.,
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served , an order consolidating the above-
entitled cases, complaints and a notice of hearing thereon having been issued and
served by the General Counsel of the National Labor Relations Board , and answers
having been filed by the above-named Respondents , a hearing involving allegations
of unfair labor practices in violation of Section 8 (a) (1), (2 ), and (3) of the
National Labor Relations Act, as amended , 61 Stat . 136, herein called the Act, was
held in Belfast , Maine, on March 21 , 22, 23 , and April 10 and 11, 1956 , before the
duly designated Trial Examiner.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In substance, the complaints allege and the answers deny that the Respondents:
(1) in August 1955, formed, sponsored, assisted, and dominated certain Committees
of their employees; (2) in September 1955, discriminatorily discharged certain
named employees 1 because they engaged in union and protected concerted activities;
and (3) by such and other conduct interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed by Section 7 of the Act.
At the hearing all parties were represented, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence pertinent to
the issues, to argue orally upon the record, and to file briefs and proposed findings
and conclusions. Briefs have been received from the Respondents and from the
Charging Union. The Respondents' motions to dismiss both complaints, made at
the close of the hearing and upon which ruling was then reserved, are disposed of
by the following findings, conclusions, and recommendations.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Summers Fertilizer Company, Inc., is a Maryland corporation engaged at
various plants in many States of the United States, as well as in New Brunswick,
Canada, in the manufacture, sale, and distribution of fertilizer and related products.
The plant here involved is situated at Sandy Point, Maine, where, in the conduct
of its business, this Respondent causes large quantities of potash, phosphorous, and
nitrogen to be purchased and transported in interstate commerce from and through
various States other than the State of Maine and causes substantial quantities of
fertilizer valued at more than $50,000 annually to be sold and transported from its
Sandy Point plant in interstate commerce.
Northern Chemical Industries, Inc., is a Maine corporation having its principal
office and place of business at Searsport, Maine, where it is engaged in the manu-
facture, sale, and distribution of heavy chemicals and related products. In the course
of its business it causes raw materials valued at more than $500,000 annually to be
purchased and transported in interstate commerce from and through various States
other than the State of Maine.
The Trial Examiner concludes and finds that both Respondents are engaged in
commerce within the meaning of the Act.
Insofar as employer-employee relations are concerned the two Respondents may
reasonably be considered to be a single employer. James E. Totman is president of
both corporations. Fred L. Litty is a vice president of both corporations and is in
active charge of both the Sandy Point and Searsport plants which are only 5 miles
apart. Top supervision is common at the two plants; there is frequent interchange
of employees and lower supervision. Until January 1, 1956, there was one payroll
for both plants.
During the period of material events-August and September 1955-there were
12 to 14 employees at the Sandy Point plant, and about 40 employees at the
Searsport plant.
It. THE LABOR ORGANIZATIONS INVOLVED
American Federation of Labor-Congress of Industrial Organizations, the Com-
mittees, and District 50, United Mine Workers of America, are each labor organiza-
tions within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The formation of the Committees
All events and conduct here involved occurred shortly after-and indeed clearly
were precipitated by-the Respondent's refusal to recognize and bargain with
District 50, U. M. W., on August 10, 1955, the day after representatives of that
organization had demanded such recognition from Vice President Litty, claiming
' As to the Respondent Summers Fertilizer the following • Warner Hamilton, Clinton F.
Holmes, Bruce G. Mills, Norman D. Lohr, Howard Bull, Walter F. Clark, Maynard Farn-
ham, Edwin Hamilton, Ronald Holmes, Sheldon A. Leighton, Nelson Pain, Maxwell Payne
and William P. Warman ; as to the Respondent Northern Chemical the following : Raymond
Webster, Charles Elden, Kenneth E Lyford, William Swift, Albert Gamble, Alphonse Hazel-
ton, and Hilton Plummer.
THE SUMMERS FERTILIZER COMPANY, INC. 251
to have obtained signed authorization cards from almost all employees at both plants
and offering to have an election conducted by some third party (the U. M. W.'s non-
compliance with certain sections of the Act barring its access to the Board's certifi-
cation processes).z Also on August 9, Litty was visited by representatives of the
American Federation of Labor and told of its intent to organize and seek a Board
election.
Litty voiced his refusal to a District 50 representative early the morning of August
10. Early the following morning there took place a significant conversation in the
plant garage between Jerry Moynihan, Litty's assistant, and Elmer Engstrom, a
mechanic. From this conversation, details of which are not fully revealed by
credible testimony of the participants, it is undisputed that there stemmed the first
action resulting in the formation of the Committee at the Searsport plant. Whether
first suggested by Moynihan or by Engstrom, it is established by the testimony of
both individuals that the subject of a group of employees going in to see Litty was
broached by one or the other. (Engstrom, as the record plainly shows, was a most
hesitant and reluctant witness called by General Counsel.) He gave his testimony
but a few feet away from Moynihan, who sat at the counsel table, in the small room,
taking notes. After admitting that he had had a conversation with Moynihan on the
morning in question, Engstrom at first said he could remember nothing about it
except a discussion about the transmission of Moynihan's car. He was asked specifi-
cally by General Counsel and replied as follows:
Q. Do you remember talking with Mr. Moynihan about the United Mine
Workers union?
A. I don't remember of talking with, Jerry about that.
Eight pages later, by the record, Engstrom altered his testimony, as follows:
Q. Do you remember the substance of what you talked about?
A. Well, no, I don't. I mean, it was on the UMW. [Emphasis supplied.]
As to the matter of going to see Litty, there occurred the following colloquy early
in Engstrom',s examination by General Counsel:
Q. Do you remember any conversation at all with Mr. Moynihan that
morning about anything that you might do with reference to Mr. Litty?
A. No.
Q. Do you remember any discussion with Mr. Moynihan in which either
you or he talked about the possibility of getting a group of men and seeing
Mr. Litty?
A. No.
Finally General Counsel asked Engstrom if he recalled his own interview with
him but a few nights before the hearing opened, in the presence of others. Eng-
strom admitted the fact. Then followed:
Q. And do you remember a discussion we had the other night about a con-
versation you said you had with Mr. Moynihan in which Mr. Moynihan
said that if you said any certain thing he would deny it?
After a long delay in receiving a reply, General Counsel repeated:
Q. Do you remember that, Mr. Engstrom?
A. Yes, I remember that.
Engstrom then, after being pressed by General Counsel, said he could not recall
what it was that Moynihan told him he would deny. At this point, the Trial
Examiner said:
Now, Mr. Engstrom, you have hesitated several minutes in answering this
question. You have been hesitant throughout your examination: Just let me
assure you, and I am sure counsel for the company will agree with me, that
2 Although the accuracy of District 50's majority claim is not an Issue in these cases,
the testimony of that organization's representative is undisputed that at the time of the
demand it had 53 signed cards and, as noted in a preceding section, there were only about
54 employees at both plants. That the claim had substantial foundation, however, Is
shown by 2 facts: (1) In September all employees at the Sandy Point plant struck at the
call of District 50; and (2) on the morning of August 10 Jerry Moynihan, assistant to
Litty, questioned many employees at the Searsport plant , demanding to know if they were
aware that a strike was to be called that morning if District 50 were not recognized, and
was told by them, according to his own testimony, that they knew only that "if there was
any trouble, anything about a strike, it would be put up to a vote and they'd have to vote
before anybody would go out."
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you need have no fear whatsoever in telling the whole truth; that nothing
will happen to you as a result of your telling the truth.
Counsel for the Respondents objected vigorously to the Trial Examiner's remarks,
and directly asked Engstrom:
Elmer, as far as the company, are you in any fear that if you answer a question
that might possibly hurt the company ,that you would have reprisals by losing
your job?
A. No.
After this exchange, however, Engstrom's memory revealed more details. It was
then that he changed his testimony, as noted above, and admitted that Moynihan
and he had discussed the U. M. W. And after several searching questions by
General Counsel, the following colloquy occurred:
Q. . . Do you remember now whether you, on August 11th, had some
talk with Mr. Moynihan in which one or both of you talked about the possi-
bility of going to the office that morning?
A. There was talk on it; yes.
Q. And who first brought up the subject in that conversation about your
getting a group of fellows together and going to the office?
A. Well, I mentioned it to Jerry, too. I mentioned it to him first. I went
in there and I was in there talking with him, I asked him, as I told you before,
about the business and he said the best way was to come out with the truth and
the simplest way.
Q. And you asked him about what?
A. How we'd find out what the company had to offer.
Q. What did he say?
A. I believe that is what he said. I mean, that was the way it was and I
don't remember what he said.
The Trial Examiner cannot and does not believe Moynihan's account of this con-
versation, quoted below:
he (Engstrom) said he wanted to ,ask me something and I said what? He
said, "The boys have been talking around the plant about pay, wage increases,
and so forth," and he said, "You have always helped us out, and I want to
know what you'd advise us to do. They are now talking about getting a group
together and going up to the office." He said , "I know there is nothing you
can do about it. lam just asking for advice." I said, "Wait a minute, Elmer."
I said, "This thing is something I don't know anything about. Apparently we
are in for some serious trouble. And I made no policy for the company. I'm
a production man, period. That is the end of it. I don't want to talk to you
about it. I don't want to discuss it. If you ever say I even talked to you, I will
say you were lying about it because this is dynamite, and I don't want any
part of it."
Moynihan's version on its face is unreasonable and unconvincing absent some ex-
planation on his part as to why an employee's mere inquiry about approaching his
superior to see about a raise should have been considered by him as "dynamite," in
view of his testimony that he, himself, had only the day before gone among many
employees at the same plant asking them about the threat to strike. Further, if his
version of his refusal even to talk with Engstrom about going to the office is to be
credited, then it conflicts sharply with his own later admission that a few days
after this incident he voluntarily made an appointment for Sandy Point employees
to see Litty when they also told him they would "like to see about a raise."
After his conversation with Moynihan, Engstrom went to employee Dexter Little-
field and said, according to the latter's undisputed testimony, "let's go to the bull-
pen and see if we can't get some other fellows to go over and see what Mr. Litty
will do. We are in a mess. We don't know what way to turn, and see what he will
do." The two thereupon picked up others and a total of nine proceeded to Lilly's
office. Included among the nine were Maurice E. Rivers and Merrill Ellis, Sr., both
of whom, if not supervisors with power to hire and fire, were clearly supervisors
representing management to employees over whom they had charge.3 (Drico
Industrial Corporation, 115 NLRB 931.)
8 Rivers, according to Litty, was "chief operator" of the sulphate plant, with authority
over nine men, instructing them "how to run the plant." Ellis, also according to Litty,
was "lead man" and "chief operator" at the alum plant, who "disseminated information
from the office" as to shipments, distribution and production schedules, and "with limita-
tion" had responsibility over the second and third shifts as well as the first.
THE SUMMERS FERTILIZER COMPANY, INC. 253
Rivers acted as spokesman for the group . He asked Litty if he was going to
recognize the U. M. W. Litty replied, "Definitely, not." Litty then told the group
that he would be glad to "talk with us about it," according to Engstrom, but said
that before he would recognize them he wanted to be sure they represented the
employees. As Engstrom expressed it, Litty "wanted us to get the men to recognize
us as a group to negotiate for them as he called it." The group then went to the
garage-with full knowledge and approval of management-since Moynihan also
was there. Moynihan brought down the payroll list and men off duty were called
in from their homes. Littlefield was sent for 4 or 5 men, named on a list given
to him by Moynihan, who instructed him, according to the employee's credible
testimony, "to tell them to come in, they were going to have a meeting at 1 or 2
o'clock in the afternoon, a meeting in the garage to find out whether they wanted
a company union or not." (Moynihan admitted that he brought the payroll list
to the garage so the men could "contact the men absent" but he declared "I didn't
ask [why]. It was none of my business." Moynihan, as noted above, was in direct
supervision of the entire works, under Litty. He did not deny Littlefield's above-
quoted testimony.)
Early that afternoon men off shift and those on duty met in the garage for an
hour or more. Rivers, previously identified as being a supervisor, presided, and
a paper was passed around bearing the following typed text:
We; The undersigned, agree to the formation of our own representatives bar-
gaining committee appointed from the men of N. C. I.
No names of those "appointed" appeared on the list. It is undisputed, and therefore
found, that Rivers told Raymond Webster, one of the employees off duty who
was called in, that "it was best for us if we would sign the paper and go along
with it." Since Rivers had direct supervision over Webster, giving him orders, the
Trial Examiner at this point concludes and finds that the Respondent Northern
Chemical must be held accountable for Rivers' conduct on the above-described
occasion , and that both by Rivers' presiding at the meeting and by his statement
to Webster, the Respondent participated in and dominated the formation of, the
Committee. (Majestic Metal Specialties, Inc., 92 NLRB 1854, at 1856, 1857.)
Thirty-six employees signed the "paper ," including Rivers, Ellis, and Joseph
Plourde who, by Litty's own testimony, is established as having served in a super-
visory capacity. Plourde had full charge of the maintenance crew, and accord-
ing to Litty "transmits the information from the office" and "within limitation he
had supervisory powers."
The same nine men returned to the office that afternoon and gave Litty the piece
of paper with signatures upon it . None of the nine men had been elected or
appointed, by anyone, to serve as a "Committee." Upon receiving the document,
however, and without request from the men themselves, Litty immediately had typed
a notice granting his recognition to the nine men "as the exclusive bargaining agent
for all of the employees of the company," with certain exceptions.
After somewhat prolonged discussion with the men, and after another meeting
presided over by Rivers at which the majority of the employees approved its terms,
the Respondent Northern Chemical the next day signed a contract with the nine
men, designating them as the "Committee ," and containing a "no-strike" clause.
Among those signing on behalf of the Committee were Rivers and Ellis, heretofore
found to have been supervisors and representatives of management.
All employees were paid full time for the periods spent at meetings, whether
called in to the plant or while on duty. The Committee members were paid full
time for the hours spent at meetings among themselves or with management.
By entering into this contract with the Committee, at a time when District 50
claimed majority representation , thereby creating a question of representation, and
under the circumstances revealed above, the Respondent gave valuable assistance to
the Committee, and violated Section 8 (a) (2) and (1) of the Act. (Ben Corson
Manufacturing Co., et al., 112 NLRB 323; Pittsburgh Valve Company, et al., 114
NLRB 193, and cases cited in footnote 19 of the latter case.)
The Trial Examiner has found that by the conduct of Rivers, in presiding at
meetings and by his coercive instructions to Webster , the Respondent dominated
.the formation of the Committee.' It is also found that both Litty and Moynihan
also participated effectively in such domination . For example , Moynihan 's provid-
ing the list of absent employees , and his sending of Littlefield for certain of them,
was plainly an act of domination . Litty's acts, in informing the nine employees
who first came to his office that he would "definitely not" recognize District 50
and at the same time refusing to discuss wages with them until they brought in
proof that they represented other employees , must realistically be considered and
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found to be domination of the most effective nature. As counsel for the Re-
spondent established in questioning Engstrom, a most reluctant witness called by
General Counsel, the employees who went into the office had already authorized
the U. M. W. to represent them, and wanted such representation. Engstrom said,
"We had already signed up in it (the U. M. W.)." And further:
Q. (By Mr. Bennett.) Did you want to be represented by the United Mine
Workers at that time?
A. If the company had accepted, we would have.
In short, Litty made it plain that the only way employees could even discuss wages
with him was by forming the Committee. By such domination, the Respondent
violated Section 8 (a) (2) and (I).
Financial support was given to the Committee by the Respondent in paying them
for the time spent in organizing and negotiating. By rendering such financial support
the Respondent also violated Section 8 (a) (2) and (1). (Majestic Metal Specialties,
-Inc., 92 NLRB 1854, at 1858.)
Employees at the nearby Summers Fertilizer plant, learning of the substantial
increases given to the Searsport employees, naturally became concerned, particularly
since the two plants were so closely interrelated that there was frequent interchange
and all were on the same payroll. Their chosen bargaining agent, District 50, had
been summarily refused recognition.
On the morning of August 16, 10 employees gathered at the Sandy Point plant.
By majority vote they decided that Norman Lohr, head of the District 50 local,
and Bruce Mills should see Moynihan for the purpose, as described by Lohr, of
seeing "what the company would do for us and nothing more as we did not want
a company contract such as had been signed at Searsport." They had voted not
to have a company union and the two were instructed not to sign any thing. When
Moynihan came to the Sandy Point office that morning, Lohr and Mills approached
him. Lohr asked him "what the company intended to do for the men at Sandy
Point in view of what had happened at Searsport." Moynihan said he was glad
they had broken the ice, adding that his hands had been tied due to the demand
for recognition from District 50. Moynihan promptly told them he would get in
touch with Litty. He did so, and then told Lohr and Mills to get all the Sandy
Point employees together and go to the Searsport office to see Litty.
A dozen employees then went to Searsport. Litty told them he was glad to see
them, and "wanted to get things finished," as he had a lot of work to do. Lohr
asked him what he intended to do for the Sandy Point employees. Litty said he
would be glad to discuss the matter, either with the group as a whole or, as he
suggested, with a smaller group selected from among the entire group. Litty said
he would negotiate a contract in good faith. Lohr promptly told Litty that the
employees did not want to negotiate or sign a contract. He asked Litty why the
men could not have a raise and forget all about the rest of it. ° Litty said that
he had no other alternative, in view of the demand for recognition by District 50.
The men persisted in wanting to know why they could not have a raise without
signing a contract. Finally Litty said he would have to get legal advice on the point.
The argument was interrupted by lunch time. After lunch, only four of the men,
by agreement, returned to Litty's office. Litty greeted them by stating that he
assumed that they were representing the others. They agreed, and upon this-again
without any request on the part of the four men-Litty had the office girl type out
a formal letter recognizing them as the exclusive bargaining agent for the Sandy
Point employees. The group remained adamant, as did Litty, during the afternoon
meeting. The men made it clear they did not want a contract-all they wanted
was a raise. Litty made it equally plain to them that he would not even discuss
wages with them unless they agreed to negotiate a contract.
The next morning Moynihan approached a small group of men at the Sandy
Point "bull pen." They asked him why they could not get a raise without a
contract, and he replied, as had Litty, that the District 50 demand had "tied" their
hands. One of the men asked what would happen if they did not sign a contract,
and Moynihan replied that "they would have to close the place up until it was
straightened out." (The quotations are from the credible testimony of Warner
Hamilton. Moynihan admitted the occasion, denied making the statement, but
erroneously placed it as occurring on the morning of August 18. Foreman Harry
Emmons, a witness for the Company who claimed he was present, also denied that
Moynihan made the remark. The denials are not credited. Moynihan's contra-
dictory testimony as to the Searsport events has already been pointed out. Emmons'
THE SUMMERS FERTILIZER COMPANY, INC. 255
memory plainly is unreliable. If, as he said, Moynihan had him go with him each
time he talked with the men at Sandy Point, then he surely would have recalled the
major points of discussion-yet he flatly denied knowing that the employees re-
peatedly declined to sign a contract, and even denied knowing that the U. M. W.
had been organizing his employees.)
On the morning of August 18, the employees, in a group, asked Moynihan if they
had found out, by getting legal advice, if a raise could be granted without a contract.
Moynihan said, in effect, that a contract was necessary, and told the group, accord-
ing to the credible testimony of employees present, that if they did not quit "our
damned f-g around" they were "liable to find the plant closed down." (Moyni-
han denied making this statement. The Trial Examiner does not credit his denial.
As noted heretofore, Moynihan's account of his conversation with Engstrom defies
reasonable belief. Furthermore, the situation as described by himself was of a
character inviting some expression of impatience. He admitted that he had given
instructions to the foreman at the plant to let the men alone after their first meeting
with Litty, and permit them to hold whatever meetings on company time they
wished. It appears that by the morning of August 18, little work had been done
at the Sandy Point plant by anyone.) Despite Moynihan's threat the employees
were not ready to yield to the pressure, and still declined to sign a contract in order
to get an increase of wages.
Also on August 18, Foreman Emmons told employees Bruce Mills and E. J.
Hamilton that if they did not sign the contract the place would be closed that
weekend. (The finding rests upon the credible testimony of the two employees.
Emmons denied making the statement. The denial is not credited, for reasons
set forth above.)
Faced with the economic threat of loss of work unless they yielded to the Re-
spondent's demand, the employees at Sandy Point decided at a meeting held on
company time and premises during the afternoon of August 18 to agree to sign a
contract if the Company would include a clause relieving them as individuals of
any personal liability. They so informed Moynihan that afternoon, and the next
morning Litty came down, agreed to insert the liability clause, and he and the
-group returned to Searsport where another contract, granting increases in wages,
was entered into. It also contained a no-strike clause.
As at Searsport, all time spent by the employees in discussing the formation of
the Committee and the matter of the contract was paid for in full by the Respondent.
Even to a more marked degree than at Searsport, the Respondent dominated the
formation of the Committee, for here it became for the employees a stark choice
between a Committee and a contract and their jobs. And the very existence of the
Committee depended upon the contract itself, a form of both support and assistance.
By such domination, financial and other support, the Respondent Summers Ferti-
lizer violated Section 8 (a) (2) and (1) of the Act.
B. The strike and the discharges
When representatives of District 50 made their recognition demand upon Litty,
one of them pointed out that since the organization could not seek certification
by the Board, their only recourse was by economic action-which Litty reasonably
understood to mean a strike. Although no strike occurred on August 10, as Litty
believed was threatened, District 50 did call and conduct a strike the following
month.
All the Sandy Point employees struck on September 29. They appeared at the
Searsport plant and picketed with District 50 picket signs. Although at the hear-
ing Litty professed no knowledge as to what the strike was about, since no im-
mediate demand was made upon him, the Trial Examiner considers that such
testimony lacked candor and fact. District 50 had withdrawn neither its claim of
majority nor its threat to strike to gain recognition. On the morning of the strike
Litty asked Norman Lohr to bring the Sandy Point "Committee" into the office,
and Lohr replied that the U. M. W. representative was speaking for them.
Several Northern Chemical employees joined the picket line, or declined to pass
the line. One of these employees; Clarence Weldon, was told by Moynihan that
if he would leave the picket line he would save himself -a "lot of trouble." When
Weldon replied that he intended to "stick with the boys in the line," Moynihan
told him "it would be a black line against" him "in the future when" he "wanted
future employment." Moynihan's threat was in violation of Section 8 (a) (1)
of the Act, since its plain purpose was to restrain employees from engaging in
protected activities.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of the Sandy Point employees were promptly discharged on September 29,
and given their final paychecks. Northern Chemical employees, on strike, were given
written notice that unless they came in the following day, they also would be dis-
charged. Some returned, others did not and were fired. Litty also gave the Com-
mittee at Northern Chemical the privilege-another item of obvious and illegal assist-
ance-of deciding which of the N. C. I. strikers would be reinstated after September
30. The Committee exercised this power granted to them. It is here concluded and
found that by such assistance, the Respondent Northern Chemical further violated
Section 8 (a) (2) and (1) of the Act. (As the Board said in Majestic Metal Special-
ties, Inc., 92 NLRB 1854. at 1862: "It is well settled that an employer is under a duty
to insure that its right to hire, discharge, or transfer is not delegated to any anti-
union or proumon group of employees." See also cases cited in footnote 20 of the
cited decision.)
The complaint alleges, as a witness Litty admitted, and it is here found that the
following individuals were discharged by the Respondent Summers Fertilizer on
September 29, 1955: Warner Hamilton, Clinton F. Holmes, Bruce G. Mills, Norman
D. Lohr, Howard Bull, Walter F. Clark, Maynard Farnham, Edwin Hamilton,
Ronald Holmes, Sheldon A. Leighton, Nelson Pain, Maxwell Payne, and William P.
Warman. It is further concluded and found that they were discharged for engaging
in union and protected concerted activities, in violation of Section 8 (a) (3) and (1)
of the Act. Litty's claim that they were discharged because they violated a no-strike
clause is plainly without merit. The contract itself was obtained under duress by the
Respondent, and was illegal within the meaning of the Act.
The complaint alleges, as a witness Litty admitted, and it is concluded and found
that the Respondent Northern Chemical on September 30, 1955, discharged the fol-
lowing. Raymond Webster, Charles Elden, Kenneth Lyford, William Swift, Albert
Gamble, Alphonse Hazelton, and Hilton Plummer. It is further concluded and found
that they were discharged for engaging in union and protected concerted activities,
in violation of Section 8 (a) (3) and (1) of the Act. As with the Sandy Point em-
ployees, Litty's defense claim that the discharges were because of a no-strike clause
is equally, and for the same reason, without merit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with their operations described in section I, above, have a close , intimate,
and substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, the
Trial Examiner will recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record as a
whole, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. American Federation of Labor-Congress of Industrial Organizations, the Com-
mittees, and District 50, United Mine Workers of America, are each labor organiza-
tions within the meaning of Section 2 (5) of the Act.
2. By dominating, assisting, contributing support to, and interfering with, the for-
mation and administration of the Committees, the Respondents Northern Chemical
and Summers Fertilizer have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of the em-
ployees listed in footnote 1, above, thereby discouraging membership in District 50,
the Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]