Trojan Powder Co.

National Labor Relations Board - Board Decisions

Jun 26, 1942

41 N.L.R.B. 1308 (N.L.R.B. 1942)

In the Matter of TROJAN POWDER COMPANY and UNITED MINE WORK-
ERS OF AMERICA, DISTRICT 50, AFFILIATED WITH THE CONGRESS OF
INDUSTRIAL ORGANIZATIONS
Case No. C-1979.-Decided June 26, 1942
Jurisdiction : explosives manufacturing industry.
Unfair Labor Practices:
Interference, Restraint, and Coercion: anti-union statements ; distribution of
series of letters at height of union organizing campaign , appealing to "loyalty"
of employees, emphasizing benefits unilaterally granted to employees, and
soliciting assurance of no work stoppages.
Collective Bargaining: allegation of refusal to bargain collectively, dismissed
upon finding of no majority representation.
Remedial Orders : cease and desist unfair labor practices.
Mr. Jack Davis, for the Board.
Mr. A. V. Cherbonnier and Mr. Warren C. Cunningham, of New
York City, Mr. Kenneth Souser, of Philadelphia, Pa., and Mr. Karl
Y. Donecker, of Allentown, Pa., for the respondent.
Mr. Fred Fudge, of Allentown, Pa., for the Union.
Mr. Harry Cooper, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Mine Workers of
America, District 50, affiliated with the Congress of Industrial Or-
ganizations, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Fourth Region (Philadelphia, Pennsylvania), issued its complaint
dated June 19, 1941, against Trojan Powder Company, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notice of hearing thereon,
were duly served upon the respondent and the Union.
41 N. L. R. B., No. 240.
1308
TROJAN POWDER CO. 1309
In respect to the unfair- labor practices, the complaint alleged in
substance that on or about April 8, 1941, the Union was, and at all
times since has been, the exclusive representative for the purposes of
collective bargaining of all the employees of the respondent in a'unit
alleged as appropriate; that on or about April 8 and April 15, 1941,
and at various times thereafter, the Union requested the respondent
to bargain collectively with it with respect to rates of pay, wages,
hours of employment, and other conditions of employment as exclu-
sive representative of its employees in said unit, and that the respond-
ent has refused to bargain with the Union. The complaint further
alleged that, from about December 1940 to the date of the com-
plaint, the respondent, by urging and warning its employees not to
join the Union, by keeping under surveillance meetings of the Union,
and by soliciting employees to refrain from concerted activities, in-
terfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act. Thereafter the re-
spondent filed an answer in which it denied having engaged in the
alleged unfair labor practices.
Pursuant to notice, a hearing was held from August 7 to August 13,
1941, in Allentown, Pennsylvania, before R: N. Denham, the Trial
Examiner duly designated by the Chief Trial Examiner: The Board
and the respondent were represented by counsel and the Union by,
its designated representative. 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 bearing upon the
issues. At the opening of the hearing, one Harold W. Helfrich
presented a motion to intervene in behalf of Robert W. Lobach and
9 other named persons acting for themselves as employees of the re-
spondent and for 254 other hourly paid production and maintenance
employees of the respondent similarly situated. The motion for
intervention was denied. In view of our findings hereinbelow made
in Section III B, we find it unnecessary to pass upon the propriety
of this ruling. At the close of the hearing, counsel for the Board
,-Moved that the pleadings be conformed to, the proof in regard to
names, dates, and similar matters. This motion was granted with-
out objection. Counsel for the respondent moved that the complaint
be dismissed. The Trial Examiner took this motion under advise-
bment and subsequently denied it in his Intermediate Report. The
ruling is affirmed. The Board has reviewed the other rulings of the
Trial Examiner on motions and on, objections to the admission of evi-
dence and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 2, 1941,-,the Trial Examiner filed, his Intermediate Re-
port, copies of which were duly served upon 'all the parties. He
found that the respondent had engaged in and was engaging in unfair
labor practices, within the meaning of Section 8 (1) and (5) and
Section 2 (6) and (7) of the Act, and recommended that the respond-
ent cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. On December 8,
1941, the respondent filed exceptions to the Intermediate Report.
Pursuant to notice, a hearing for the purpose of oral argument
was held on March 10, 1942, before the Board at Washington, D. C.
The respondent and the Union were represented by counsel who
participated in the oral argument.
The Board has considered the exceptions filed by the respondent
and, insofar as they are inconsistent with the findings, conclusions,
and order below, finds that they have no merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
i
L THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation having its principal
office and place of business in New York City. It maintains an
Eastern branch, with offices in Allentown, Pennsylvania, and a plant
at Seiple, Pennsylvania; and a Western branch with offices in San
Francisco, California, and a plant at Robert, California. The instant
proceeding concerns only the Seiple, Pennsylvania, plant, where the
respondent is engaged in the manufacture, sale, and distribution of
high explosives, chemicals, blasting supplies, and kindred products.
The respondent ships annually from its Seiple plant to its customers
in excess of 500,000 pounds of finished materials in and through the
channels of interstate commerce, and receives annually, through like
channels of commerce, in excess of 500,000 pounds of materials,
purchased by it and shipped to it at Seiple, Pennsylvania. The re-
spondent admits that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATION INVOLVED
District 50, United Mine Workers of America, affiliated with the
Congress of Industrial, Organizations, is a labor organization admit-
ting to membership employees of the, respondent at its Seiple plant. -
TROJAN POWDER CO. 1311
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
1. Background
In August 1936, the American Federation of Labor instituted an
organizational campaign among the employees of the respondent at
its Seiple plant. Starting on August 21, 1936, and thereafter, the
respondent sent a series of letters to each of its employees , pertaining
to the relations of the respondent with its employees , its planned
program for their betterment, and the necessity for "loyalty" by the
employees to the respondent. In a letter dated August 21, 1936, the
respondent , after asserting its willingness "to accept some unprofitable
business in order to afford more work to its employees , stated as
follows : "The Company is quite willing to do this in the interest of
its loyal employees . . . [and] greatly appreciates the support which
the loyal plant employees have always given. Such loyal fellow
workers will always have the full support of the Company . . ." In
another letter dated August 21, the respondent stated that it had
"always held the `good neighbor' attitude in all of its relations with
others and in particular with its associated fellow workers" and
further stated that while "a man has a `right' to do many things .. .
if he goes through life thinking chiefly about his `rights' and trying
to exercise all of them , isn't he apt to interfere with his own happi-
ness' and success more than he promotes it?" In a letter dated
August 24, the respondent, after referring to its program to afford
more work and greater earnings to its employees , questioned whether
it would be "practicable" for the respondent to carry out such a pro-
gram "unless it is assured of the full cooperation of its employees."
In a letter dated September 4, the respondent solicited its employees
to sign and return the following letter, which was enclosed :
TROJAN POWDER COMPANY,
17 N. Seventh St., Allentown, Penna.
SEPTEMBER 5, 1936.
GENTLEMEN : The Company has sent me several letters from
which I understand that it hopes to be able to operate the Plant
during the coming Winter in a way to provide more and steadier
work for its employees than during the past several Winters.
Since I understand that it will be necessary to take some un-
profitable business to accomplish this, I recognize that it would
be unbusinesslike for the Company to do it unless it is assured
of the full cooperation of its employees.
I naturally am very much interested in there being more work
at the Plant during the Winter period when our work is usually
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
slack, and I desire to assure the Company of my full cooperation
in every respect so that it can proceed with its plans. There-
fore, I will not be a party to any labor disturbance of any sort,
and I will do my best to influence my fellow employees against
any such course.
In other words, if the Company decides to go ahead with any
plan which may increase the work at the Plant during the
coming Winter, it can rely on my complete support.
On September 16, 1936 , the respondent wrote to its employees as
follows :
The Company has received your letter of September 5th which
assures your full cooperation and support for any program in-
tended to provide more and steadier work over the coming
winter. The Company was much gratified by the receipt of your
letter and you will be pleased to learn that practically all of
your fellow workers showed their agreement with your views by
taking action similar to yours .. .
During the coining Winter and until further notice, the Com-
pany will try, to the best of its ability, to furnish an average
of not less than forty hours of work per week less Holidays
to those hourly employees whose work and conduct are satisfac-
tory and in keeping with the spirit of their letters provided
they are physically able to perform the duties assigned to them.
Any happening beyond the control of the Company such as
Acts of God, war, accidents, labor disturbances, etc., in fact any-
thing interfering with the normal conduct of the Company's
business, would prevent the carrying out of this program. . . .
According to the testimony of employee Elsner Wehr, secretary of
the A. F. of L. local in 1936, on one occasion in August 1936, Richard
Boyd, the respondent's assistant director of research in charge of its
research division, attempted to discourage Wehr from his union ac-
tivity. Wehr testified that he was summoned to the personnel office
'of the plant, where Boyd informed him that "he didn't like the thing
we fellows were doing in the plant," that. "for what we [the em-
ployees] are doing right now he could get rid of me [Wehr], and
he wouldn 't have to have me working in the plant." Wehr further
testified that Boyd then questioned him concerning the identity and
number of employees active in the A. F. of L. local and stated that
"the place you fellows ought to organize is in a sweat shop, and not
a place like this here." Boyd, in his testimony, gave a different
version of the foregoing incident. He testified that Wehr's uncle,
Earl Wenner, an employee in the respondent 's personnel office, called
TROJAN POWDER CO. 1313
Boyd to that office and informed him that his nephew, Wehr, had
told Wenner that he had joined the union because he had been ad-
vised by union officials that he would be discharged if he failed to
join. Boyd further testified that he thereupon merely told Wehr
that his union affiliations had nothing to do with his status as an em-
ployee of the respondent. Wenner's testimony regarding this inci-
dent is substantially similar to that of Boyd. Upon all the evidence,
we credit Wehr's testimony regarding the incident, as did the Trial
Examiner.
F. M. D. Bottenfield, works manager of the Seiple plant, testified
that he had participated in the preparation of the 1936 letters, but
that he could not remember whether there was any relation between
the letters of August and September 1936 and the organizational
activities of the American Federation of Labor. It is clear, however,
from the context of the 1936 letters referred to above, and the cir-
cumstances surrounding their circulation to the employees, including
the foregoing remarks of Boyd to Wehr, that the letters and remarks
were designed to offset employee interest in the American Federation
of Labor and to discourage membership therein. We find, as did the
Trial Examiner, that the respondent intended these letters and Boyd's
remarks to coerce, and that they did coerce, the employees into aban-
cloning their organization efforts.
These events of 1936 are not, however, the basis of any ultimate find-
ings herein, since the evidence in this regard was introduced only
for the purpose of background, and the complaint did not allege that
the respondent had engaged in unfair labor practices prior to 1940.
Nevertheless, the respondent's conduct in 1936 serves to give meaning ,
to its conduct in 1941, which is set forth below, and which followed
the 1936 pattern.,
2. Events of 1940 and 1941
The 1936 efforts of the American Federation of Labor do not ap-
pear to have been successful . Since that time, however , the respond-
ent has continued its practice of writing periodic letters to its
employees . Until the beginning of 1941 , these letters ' had, for many
months, dealt almost- entirely with matters concerning the pay system.
No further attempts at unionization appear to have' been made among
the respondent 's employees until , the latter part of 1940 , when the
Union began to-organize ., - About January 16 , 1941, the Union dis-
tributed its first , leaflet . among, the employees . In this leaflet the
Union stressed the benefits to be obtained from membership therein,
including- the improvement of wages `and working conditions and the
attainment of job security through ' a seniority agreement. In a
1 Compare N L R 'B v National Scal Corp , Map 1, 1942 (C. C A 2)
463892-42-vol 41--83
1314 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
letter dated January 31, 1941, the respondent included a paragraph
indicating to the employees that they could obtain security of em-
ployment only through "loyalty" to the respondent'2 -
In the latter part of February 1941, Fred Fudge, field representa-
tive,of the Union, took charge of organizational activities at the
plant. He promoted an active campaign, during which more leaflets
were distributed, and organizational meetings were held. On April
8, 9, and 15, Fudge met with representatives of the respondent. He
claimed that the Union represented a majority of the employees,
sought to obtain recognition of the Union as exclusive representative
of the respondent's employees, and attempted to establish bargaining
relations. On April 8, 9, and 10, the respondent issued a series of
three letters strikingly similar to'-the 1936 series.' , They dealt point-
z [Excerpt from letter of January 31 , 1941 • ]
You have security of employment now during the continuance of present conditions.
. . . The fact of the matter is that your future secuiity rests chiefly in your own
bands because the loyalty of the Company to you will always at least equal your
loyalty to the Company and it is the Company which must assume the responsibility
of undertaking the work which piovides the jobs
[Excerpt from letter of April 8 , 1941 :]
(1) Only the employer, and he only thiough constant and aggressive effort, can
supply yobs • The employer s job is to find things which people need , supply the
capital , plant , and management to enable the pioduction of these things, and then
employ people in the pioduction of these things, and in the conduct of the scores
of business matters which must be attended to For anyone but an employer to
claim that he can provide jobs or job security is nonsense unless, possibly, the
Government undertakes to do it in which case we will have in this Country one
of the several forms of government which prevail in some European countries
and which this Country is preparing to fight , first to the extent of such arms
as the Country can supply, and then to such additional extent as the Country will
approve
(2) No one need join any organization of any sort in order to have it job or
to enjoy job security with us Those who may say anything to the contrary axe
really advocating job insecurity
The above aims are all in accordance with our general program of which we have told
you quite a few times in the past several years We take pride in the program
and we hope that you share this feeling. We have a pioper regard for and a
high degree of interest in the well being of every individual in the organization
but we naturally have particular care for an interest in our older employees This
is nothing new for us as you well know It has always been a very definite pait
of our policy Incidentally ' this characteristic of our Company should be reassuring
to newer employees since this enables them to feel that their association with the
Trojan Powder Company does not represent only a day to day or month to month or
even year to year job but one which should in normal course result in the same
degree of security and other advantages as now enjoyed by our older employees
[Excerpt from letter of April 9, 1941 ]
As a matter of pride and interest in the well -being of our employees, we would
in normal course go a very long sway to continue this record for all of our present
employees if they indicate an understanding of our problems and a desire for the
job 'security which we have heretofore supplied . In such case profits would be
quite secondary with us and our program - tor (a ) steadily improving compensation
as economic conditions permit during the present period of defense activity, and
(b) -security of jobs 'thereafter , would' unquestionably work out in a very gratifying
way for all who think ' to some extent - in ,terms of the past - and the • future as
well as the present Even for those who think only in terms of th_e_ present we_
may say that in normal course our program will work out in such - way that they
TROJAN POWDER CO. 1315
edly with the friendly relations of the respondent and its employees,
the numerous efforts of the respondent to advance their welfare, and
the fact that they did not need to join any labor organization to
maintain their employment with the respondent. The letters also
emphasized that only the respondent could give, and was giving, the
employees job security and increased compensation. In the letter
dated April 10,_1941, the respondent appealed for the cooperation of
the employees, stating, "We wish to continue with our plans for mak-
ing the Trojan Powder Company an institution of which we may all
be proud, an instrumentality for the benefit of all associated with it
including owners, management, employees, customers, and the com-
munity in which we live. This requires carrying on with confidence
under the tried and experienced management which has developed
these desired benefits to their present state. Any other course not
only means an end to these benefits but also could endanger the very
existence of the business."
On April 14 the respondent sent to each of the employees a further
letter asking for their individual assurance against work interrup-
tions, in return for steady employment and steadily increasing coin-
will find that for the year 1941 their total compensation will substantially exceed any
prior year's compensation and may very easily mark a high point in the matter
of their annual compensation for a long time to come
The fact is that (luring this peiiod of national need we are not interested in
profits in the normal sense and had planned to have substantially all of the benefits
of our defense activities go to our organization as a whole We have tried to tell
you this before and we now repeat it We ate interested in doing a good job
in connection with out defense activities and, maintaining our company in suffi-
ciently strong position to meet the shock of the ending of the defense activities
so that we may be able to carry out our intention to provide security of employ-
ment for all of our employees even during the dark and uncertain days which her
somewhere ahead.
[Excerpt from letter of April 10, 19,41 1
We have tried to make clear to you our problems and our program We hope-
that you have read our communications thoughtfully, and understandingly, and
in the friendly spirit in which they were intended
Aside from the recital of some of our problems the essence of what we have said
is as follows :
1 We have in effect offered you full partnership in the profits of the business
for the year 1941 or for the period of our defense program activities should the
world conditions which necessitate them unhappily extend beyond that year.
2 We have in effect also offered you security of employment not only during
the period of our defense program activities but likewise thereafter in the days.
when work will be hard to find.
In return all that we desire is the full cooperation of all employees so that all
of our relatively small group may enjoy a feeling of security and harmony despite,
the topsy turvey world in which we live today We ha\e always had the friend-
ship of all of our employees and desire to keep it. We wish to continue with
our plans for nicking the Trojan Powder Company an institution of which we may
all be proud, an instrumentality for the benefit of all associated with it mcludmg
owners, management, employees, customers and the community in which Ave live.
This requires carrying on with confidence-under the tried and experienced manage-
ment which has developed these desired benefits to their present state Any other
course not only means an end to these benefits but also could endanger the very,
existence of the business
1316 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
pensation.4 In this connection, the communication stated ". . . we
should know promptly whether or not we can depend upon uninter-
rupted operation of the plant. If there is -any question as to this we
cannot in justice to the defense program undertake any more work
despite the fact that some of our present work may come to a close
shortly." '
S [Excerpt from letter of Api it 14, 1941 ]
We have told you of our attitude toward any profits which may arise out of
our defense program activities and of our plans for your participation in same.
We now wish to make this still more definite This, together with an expression
of your attitude, is desirable now because we should know promptly whethei or
not we can depend upon uninterrupted operation of the plant It these is any
question as to this we cannot in justice to the defense piogiam undertake any mote
work despite the fact that some of our piesent work may come to a close shortly.
For our part we make the following statements
1 We assure you of steady woi k
2 We repeat our assurances to you of steadily mcieasing average monthly com-
pensation, in proportion to individual merit and the success of our operations, for
the period beginning with December 1, 1940 (excepting to the extent that the iccotd
niay be affected by absences due to sickness of other personal reasons)
3 We announce that effective with the month of Mav and continuing, unless
you are otherwise notified, up to and including November. 1941, your Current Period
Bonus is increased from $1000 to $1500 pet month (This is in accordance with
our program for increases in Cui rent Period Bonus and Special Payments which
began with January )
4 We assure you that there will be paid to you during the month, of December,
1941 Year-End Payments of not less than a total of $12000 [NOTE-The figures
differ as to each employee addressed ]
All of the foregoing assumes that you will remain in out employ and work without
interruption up to December 31, 1941
In considering the foregoing please take into account that it gives you assurance
of steady employment, also that it assures to you a substantially higher average
monthly compensation than the gicat majority of workers inn this vicinity recene
Bear in mind that rates per hour without steady work ate deceptive Many woikets
with unduly high hourly rates ate fortunate if they have work for two hundred days
in-the year (This is true in the constiuction industry, the coal ironing industry
and many othet industries where ieiatively high hourly of daily rates being coun-
paratively small annual returns to the workers . In fact some economists hold that
unduly high hourly rates may usually be expected to result in relatively low annual
compensation.) Above all consult your family.
For your part we afford you the opportunity to give to us the assurance contained
in the statement which follows the close of the letter Naturally we would be
pleased if you and other hourly employees sign this statement since we would then
know that we could proceed with confidence in our efforts to serve the Country and
all of our employees to a maximum extent during the period of the national emer-
gency However, we do not urge you to sign this statement unless you think it is
a wise and sound thing to do in the interest of the Country, yourself, and your
present and tutute employment We may add that nne mill not disciinnnate to the
slightest extent against you if you do not sign the statement On the contrary we
would accept quite philosophically your decision not to sign if you were to so decide
even though we would then find ouiselves in the rather odd position of being
restrained from putting forth our best ettoits by the eery mien who mould recene
relatively the most benefit from our efforts or who in tun n would be most has Hied
if they, by their actions, were to discouiage our desne to serve both then and the
Country
Out course as to what work we will seek or undei take will be the only thing
which will be influenced by your action The necessity for out being guided by
your attitude you will understand and appreciate mote than some who think in
theoretical teams. You know that it would be impracticable for its to commit our-
selves to do important and uigently needed work it there is any possibility whateser
TROJAN POWDER CO. 1317
While the April 1941 letters were being distributed, some of the
respondent's supervisory -officials were commenting in similar vein
to small groups of the employees. According to the testimony of
Wehr, treasurer of the local branch of the Union in 1941, Clarence
Koch, general foreman in charge of the research and testing division,
called the men from their work in one of the research department
buildings during the first part of April, and gave a short talk. He
told the men that no one in the plant would be required to join
It labor organization in order to work in the plant; cautioned them
that they should not allow themselves to be coerced into joining the
Union by threats of being compelled to pay higher entrance fees
later, and stated that they would receive a letter that evening, which
they were to read and think about carefully. He was referring to
the first of the April series of letters already described. Wehr fur-
ther testified that about April 8 Boyd called together a group of about
15 men, including Wehr, during their work period, and addressed
them on the respondent's interest in the welfare of its employees. He
told them that business was being undertaken on an unprofitable
basis in order to provide work; that the respondent was trying to
satisfy its employees; and that he wanted the employees in turn to
be loyal to the respondent. Wehr also testified that during the same
period, Frank Forgan, foreman of that portion of the plant which
manufactures detonator caps, made the statement to Wehr in the
presence of other employees that the C. I. 0. leaders were in fact
saboteurs who were trying to assist the Nazis in winning the war
by obtaining control of defense plants through union organization so
that strikes might be called. Neither Koch nor Forgan testified.
Boyd was not questioned about, and did not deny having made, the
remarks attributed to him by Wehr, whose testimony in the foregoing
respects was not contradicted. We find, as did the, Trial Examiner,
that these incidents occurred substantially as testified to.by Wehr.
Clarence Romig, an employee, testified that on April 15, 1941,
Henry Bronstein, superintendent of the powder plant, called him
of interruption of operations at the plant Those who need the detense products
cannot take any chance Hhateiei of delayed deliveries nor would we ask them to
take any chance
[Attachment to April 14 letter J
Please sign attached and return promptly to plant office or mail in the enclosed
stamped envelope
Please Sign and Return
In consideration of the above I hereby state that during the period until December
l1, 1941 I intend to work steadily without interruption except for absences for
such things as sickness and the like I realize that the statements which have been
made by the Company to me depend for their fulfillment upon the carrying out of my
intention to work without interruption as stated above
Signattn e
TROJAN POq DER CO ,
11 North 7th St , Allentown, Pa
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
aside from his work, inquired whether he had received the letter of
April 14, and said, "You know, they told you in your letter that you
don't have to join an organization to have job security." Further,
according to Romig, Bronstein also inquired of Romig whether he
had attended any meetings of the Union. Romig's testimony regard-
ing this incident was not denied, and we find that Bronstein made the
foregoing remarks substantially as testified to by Romig.
The success of the April series of letters, and especially the letter
of April 14, is reflected in the respondent's letter of April 25, thank-
ing the employees for their almost unanimous response.5
3. Conclusions as to interference, restraint, and coercion
The respondent assumed full responsibility for the statements con-
tained in the letters written to the employees, and conceded that
copies of such letter had been sent to- and received by each of its
employees on or -about the respective dates shown on the letters.
Moreover, the respondent does not deny that Boyd, Henry Bronstein,
Koch, and Forgan are supervisory employees, and we find that the
respondent is responsible for their remarks to the employees.,,
Although Bottenfield denied that the April series of letters had
any relation to the Union's campaign, it is clear that the letters of
January 31, and April 8, 9, 10, 14, and 25, 1941, and the statements
of Boyd, Henry Bronstein, Koch, and Forgan were designed to
discourage employees from affiliating with, or engaging in concerted
activities in behalf of, the Union. As we have already found, the
1936 series of letters was instituted by the respondent as a means
of inducing the employees to abandon their organizational plans.
The respondent met with immediate success, and for a period of 5
5 [Excerpt from letter of April 25, 1941 :]
It is only through production that money can be earned with which to pay for
defense construction costs, taxes, salaries and wages , and dividends Also it is only
through production that defense materials can be supplied
It is for these reasons that we have emphasized production , uninterrupted pro-
duction We wish to share with the entire organization whatever profits may arise
out of our defense program activities This we have told you before on several
occasions We are confident of our technical ability to serve the Government program
in an efficient way and , without even approaching the point of profiteering, earn
for the entire organization as well as the owners of the business , a reasonable return
in keeping with our unusual effoits It is clearly a case where patriotism and
self-interest go hand in hand
This brings us naturally to our letter of April 14th and to the substantially unani-
mous affirmative response thereto. To say that we are pleased is putting the matter
mildly To say that it reflects the sound understanding and patriotism of our
organization is more adequate and appropriate Perhaps the best way to express the
matter is to say that time will prove that it shows intelligent self -interest in the
broadest sense of the term in that it promotes patriotic service , strengthens and
unifies our organization for further efforts , assures harmony and security and lastly
increases the compensation possibilities of our enterprise as a whole and therefore
for all concerned.
6 International Association of Machinists v N. L R B , 311 U S . 72 ; N L. R. B v.
Link-Belt Co., 311 U S 584.
TROJAN POWDER CO. 1319
years the employees reliquished their efforts toward self- organization.
When, in 1941, the Union sought to revive the employees' interest in
organization, the respondent resorted to its earlier technique of
countering self-organization by a second series of communications
and `other overt acts, paralleling in intensity the Union's campaign,
which reached its peak in the request for recognition. Thus, the
respondent's appeal to the "loyalty" of its employees, its emphasis
on the benefits unilaterally granted by the respondent to its em-
ployees, and its indication to the employees that they could obtain
security of employment and' wage increases only through the good
will of the respondent, were intended to have, and necessarily had,
the effect of discouraging membership in the Union. Moreover, in
the letters of April 10 and 14, the respondent impliedly threatened
the employees that their persistence in union or concerted activities
might result in a curtailment of work at the plant. Apparently not
content, however, with the probable effects of this barrage of letters,
the respondent, in the guise of an appeal to patriotism, sought to
obtain the positive assurance of each employee that he would not
engage in any work stoppage, in exchange for steady employment
and increased compensation. By thus exacting such assurance from
its employees individually, particularly at a time when the Union's
campaign was fully under way, the respondent imposed a limitation
upon the right of its employees to engage in concerted activities.
In view of the circumstances under which the limitation was imposed,
the respondent by its action in this regard in effect compelled its
employees to choose between continued employment and affiliation
with, the Union. While such a limitation upon the right of self-
organization may be unobjectionable when reached as a result of col-
lective bargaining,' its imposition upon individual employees under
the circumstances here found, is clearly coercive in view of the in-
equality of bargaining power of the parties, and constitutes an
insurmountable obstruction' at the outset to the development of
self-organization and collective bargaining."
The respondent urges that, by the letters and statements in question,
It was merely exercising its right of free speech. Upon the entire
record, however, and in view of all the circumstances surrounding
the respondent's course of anti-union conduct as evidenced by the
7 It may be noted that at the April 15 conference with the respondent 's attorney,
Fudge did propose an agreement providing for no work stoppages or lay -offs during the
period of contemplated negotiations
8 Matter of Arcade-Sunslrene Company, Inc . and Laundry Workers, Cleaners and Dyers
Union, 12 N L. R. B 259 , enf'd in N L R B v. Arcade -Sunshine Co, 118 F ( 2d) 49 (App.
D. C.), cert. denied 313 U. S. 567. Compare National Licorice Co. v N L. R B , 309 U. S.
350; N L . R B. v. Superior Tanning Co ., 117 F. ( 2d) 881 (C. C. A. 7) ; and N. L. R. B.
v. Hopwood Retinning Co, 98 F. ( 2d) 97 (C. C. A 2).
1320, DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
letters and statements, we find that such conduct constituted inter-
ference, restraint, and coercion, within the meaning of the Act.9
We, find that the respondent, by the letters of January 31, April
8, 9, 10, 14, and 25, 1941, and by the foregoing statements of Boyd,
Koch, Henry Bronstein, and Forgan, has interfered. with, restrained,
and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act.
B. The alleged refusal to bargain collectively
1. The alleged appropriate unit
The complaint alleges that all hourly paid production and mainte-
nance employees of the respondent, excluding foremen, assistant fore-
men, supervisory employees, salaried employees, technicians, office
and clerical employees, guards, and farm labor, constitute _a unit
appropriate for the purposes of collective bargaining. As noted
above,,the Union sought to bargain with the respondent on April
8, 9, and 15, 1941. The respondent's pay-roll list for the period
April 8-16, 1941, which was introduced in evidence, bears the names
of 388 employees. In addition, the list refers to, but does not name,
32 "farms employees." The 388 employees are classified as follows:
5 superintendents, 11 foremen and assistant foremen, 249 production
employees, 7 laboratory' assistants, 71 maintenance employees, 21
watchmen-guards, 13 office and clerical employees, and 11 technicians.
Seventeen of the employees listed as production and maintenance em-
ployees are also designated as "working foremen." The list also
indicates that among those classified as production and maintenance
employees, laboratory assistants, and watchmen-guards, 25 are paid
on a monthly compensation basis, whereas the other employees are paid
on an hourly basis. There does not appear to be any dispute con-
cerning the proposed exclusion from the unit of the employees listed
pn the pay roll as superintendents, foremen and assistant foremen,
technicians, and office and clerical employees, or concerning the ex-
clusion of the "farms employees." The total number of employees
in these groups is 72. The exclusion of these categories reduces the
total number of employees in the alleged appropriate unit to 348.
In addition to the foregoing exclusions, the Union seeks to exclude,
and the respondent to include, the watchmen-guards, of 'whom the
pay roll lists 21.10 These employees, with the exception of Chief
ON L R B V Virginia Electric & Power Co., 314 U. S. 469.
10 This figure does not include Nevin Sechler, who is listed on the pay roll as a
maintenance employee, but who was identified at the hearing as a watchman In view
of our findings below, Sechler is to be included in the unit either as a maintenance
employee or as a watchman
TROJAN POWDER CO. 1321
Guard Charles Barnes, and his assistant, Warren Holben, patrol
definite beats in and around the plant at regular intervals and are
concerned with plant safety. Barnes and Holben are engaged in
similar duties, but have no definite routes to patrol. In addition,
the watchmen-guards check on temperatures required for certain
manufacturing operations. Furthermore, some of these employees
perform janitor work, such as washing bottles and tending furnaces,
and take care of the operation of certain automatic equipment and
'machinery. Four of the watchmen spend as niuch as two-thirds of
their time in performing such tasks. One watchman is always sta-
tioned at the plant gate as employees go in and out, and sometimes
searches employees for matches. All the watchmen-guards, except
Barnes, are hourly paid employees. While some of these employees
sometimes carry a stick, they are not otherwise armed, and do not
appear to be deputized. Chief Guard Barnes has supervision over
all the watchmen, with the exception of the four referred to-above,
who are located in the research area of the plant and are under
the supervision of Foreman Koch. While Holben was referred to
in testimony as Barnes' assistant, the record does not show what
authority, if any, he has over the other watchmen.
While the Union now contends that the watchmen-guards should
not be included in the unit, it did not seek to exclude them at the
time it sought to bargain with the respondent, nor at the time it filed
the original charges herein. At the hearing Fudge testified that the
watchmen-guards were not eligible for membership in the Union and
that he had never solicited employees who 'belonged in the various
groups proposed for exclusion by the Union. However, Henry
Fenstermaker, a watchman, testified that between May 1. and 15,
1941, Fudge solicited him to join'the Union; that he told Fudge that
'he was not eligible since he as a watchman, and that Fudge as=
sured him that he was eligible. Fudge did not specifically deny
Fenstermaker's testimony. We consequently credit Fenstermaker's
testimony. Thus the evidence indicates, and we find, that at the time
the Union sought to bargain with the respondent, it did riot 'seek to
exclude the watchmen from the unit, and that its field representative
considered them eligible for membership in the Union and sought
to organize them.
In a case involving another plant of the respondent, we included
watchmen with similar duties in a unit of production and mainte-
nance employees."
n Matter of Trojan Powder . Company and International Union of Mane , Mill and Smelter
Workers, C. I. C, 29 N L R B'229
1322 DECISIONS OF NATIONAL. L'ABOR ' RELATIONS BOARD
Under all the circumstances, we shall include the watchmen-guards,
except Chief Guard Barnes, in the unit.12 We shall exclude Barnes
as a supervisory employee. The exclusion of Barnes reduces the
total number of employees in the alleged appropriate unit to 347.
At the hearing, counsel for the Board presented a bill of partic-
ulars which proposed for exclusion from the unit (a) as supervisory
employees, 8 employees listed on the pay roll as "working foremen" ; 13
(b) as technicians, 20 employees, of whom 7 are listed as laboratory
assistants, and of whom 13 are listed as production employees; 14 and
(c) as office and clerical employees, 2 employees both listed as pro-
duction employees, one also designated, as "shipper" and the other as
"storeroom" employee. The respondent opposes the exclusion of
these 30 employees from the unit, contending that they are engaged
in production or maintenance work. Regarding the proposed exclu-
sion of the 8 "working foremen," the respondent claims that their
authority and responsibility is similar to that of the other 9 employees
'listed as working foremen, whose exclusion from the unit as super-
visory employees has not been proposed.,-,' Thus, issue is raised
regarding the inclusion or exclusion of 37 employees.16
. .'a Compare Matter of Herbert C. Johnson, doing business as National Die Casting Com-
pany and National 'Association of Die Casting Workers, affiliated with the C. 1 0., 27
N. L' R B. 1144 ; ' Matter of Burton-Dixie'Corporation and Wholesale Upholsterers and
Bedding Workers, Local 173, Upholsterers' International Union of North America, affili-
ated with the American Federation of Labor; Matter of Continental Mills and Textile
Workers Union of America (C 1 0 ), 30 N. L R. B. 82; Matter of Goodrich Eleetric Co,
Inc, and United Electrical Radio & Machine Workers of America, 30 N. L R. B 979; Matter
of Penberthy In9ector Company and Steel Workers Organizing Committee, Local 2395,
affiliated with Congress of1ndustrial Organizations, 32 N. L. R B. 705; Matter of Pidgeon
Thomas Iron Company and Steel Workers Organizing Committee, 32 N L R B. 295 ;
Matter of Robins Dry Dock & Repair Company and Industrial Union of Marine and Ship-
building Workers of America, Local 39, C I 0, 33 N. L R B 15 ; Matter of Diamond
Crystal Salt, Division of General Foods Corporation, and Local 12272, District 50, Gas, Coke
and Chemical Division, United Mine Workers of America, affiliated with the C. 1 0.,
37 N L R B. 481 ; and Matter of F. M. Bohannon Tobacco Company and Local 229, Tobacco
Workers International Union, 37 N L R. 526
13 Some of these employees are also listed either as salaried employees or techmeiaris
and their exclusion was proposed also on these grounds. --
14Two, of the 13 are also listed as working foremen. Some of the 20 are also listed
as salaried employees and their exclusion is proposed on that basis also.
15 The exclusion of two of the nine as technicians, has been proposed .
1e In addition to the 17.employees listed on the pay roll as "working foremen," 3
employees, I. Handwerk, W. Roper, and Charles Greenwood, were identified in testimony
at the hearing as "working foremen" at the time of the hearing However, since they
are not listed as such on the pay roll, presumably they were not "working foremen" as
of April 8-16, 1941. Another employee, Ailen Grammes, was identified at the hearing
as a "shop foreman" • on the construction force, but likewise is' not listed as a working
foreman on the pay roll and presumably was not working as a "foreman" in April A
number of other employees, including Steckel, Snyder, Herman, Miller, and Tucker, were
identified at the hearing as "working leaders" over small groups of employees but are
not listed on the pay roll as "working foremen" and do not appear to have had the
status of leaders or "working foremen" in April. No contention has been made that any
of the employees referred to in this footnote should be excluded from the unit, and we
find that no issue has been raised respecting their inclusion in the unit.
TROJAN POWDER CO. 1323
If these 37 employees be included in the unit, then, as of the period
April 8-16, 1941, the unit would be composed of 346 or 347 em-
ployees.14 If these 37 employees be excluded from the unit, then the
unit would be composed of 309 or 310 employees. Four of these
37 employees applied for membership in the Union. If the 37 em-
ployees were to be included or excluded on a basis most favorable to
the Union, i. e., if the 4 employees who applied for membership
therein would be included and the remaining 33 would be excluded,
the unit would be composed of 313 or 314 employees. Other varia-
tions of the number in the unit are possible, depending upon the dis-
position of the 37 employees. Since, as indicated below, the Union
did not represent a majority of employees in an appropriate unit on
or before April 15, 1941, whatever be the disposition of the 37 em-
ployees, we find it unnecessary to decide whether these 37 employees
or any part of them, be included in or excluded from the unit.
2. ALLEGED REPRESENTATION BY THE 'UNION OF A MAJORITY IN TIIE
ALLEGED APPROPRIATE UNIT
As noted above, Fudge, representing the Union, last met with a
representative of the respondent for the purposes of collective bar-
gaining on April 15, 1941. By the time of that conference the Union
had received membership and authorization cards from 154 em-
ployees.'' One of these cards is that of Jonas Moyer, a clerical em-
ployee whose exclusion from the unit is not in dispute. Thus,
assuming that all of the cards constituted valid designations of the
Union as collective bargaining representative,'' the Union, by the
time of the conference on April 15, represented at most 149 employees
in a unit of 310; or at most 153 employees in a unit of 314; or 153
employees in a unit of 347. As indicated above, the Union's repre-
sentation in an appropriate unit, and the size of that unit may vary
depending upon the disposition of the 37 employees. However, it
is clear that, whatever be the disposition of these employees, the
Union did not represent a majority of the respondent's employees
in an appropriate unit on or before April 15, 1941.
Since, under Section 8 (5) of the Act, it is an unfair labor practice
for an employer to refuse to bargain collectively with a representative
of his employees only in the event that such representative has been
designated by a majority of employees in an appropriate unit, we
17 One employee , a watchman , was hired on April 10
is This figure does not include three cards which were received on April 15 Fudge
testified that these three cards were "turned in" at a meeting of the Union in the
evening of April - 15 Since the evidence does not show whether these cards had been
signed and delivered to the Union by the time of the conference on Apiil 15 , they cannot
be counted in determining the Union 's representation. One card was obtained on April 16,
and lilcenise is not included in the above figure
19 Question was raised at the hearing concerning, the validity of some of the designations.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall dismiss the allegations of the complaint regarding the respond-
ent's refusal to bargain collectively with the Union.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES 'UPON COMMERCE
We find that the activities of the respondent set forth in Section
III A, above, occuring 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 tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has engaged in unfair labor
practices by a course of conduct designed to defeat the self-organi-
zation of its employees and thereby interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed
in the Act. - The unfair labor practices found are closely related to
the other unfair practices prescribed by the Act and danger of their
commission in the future may be anticipated from the course of the
respondent's conduct in the past. The preventive purposes of the Act
would be thwarted unless such order as is entered herein is co-
extensive with the threat. 1 We therefore shall order the respondent
to cease and desist from in any manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and to take certain affirmative action which we
find will effectuate the policies of the Act. -
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Mine Workers of America, District 50, affiliated with
the Congress of Industrial Organizations, 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 prac-
tices, within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act. `
4. The respondent has not engaged in unfair labor practices,
within the meaning of Section 8 (5) of the Act.
m See N L R. B v Express Publishing Co, 312 U S 426
TROJAN POWDER CO.
ORDER
1325
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that Trojan
Powder Company, at its Seiple, Pennsylvania, plant, 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.
join, or assist labor organizations , to bargain collectively through
representatives of their own choosing , and to engage in concerted
activities for the purposes of collective bargaining and other mutual
aid and protection , as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of theAct:
(a) Immediately post notices in conspicuous places throughout its
plant at Seiple, Pennsylvania , and maintain such notices for a period
of at least sixty ( 60) consecutive days from the date of posting, stat-
ing that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraph 1 (a) of this Order;
(b) Notify the Regional Director for the Fourth Region, in writ-
ing, within ten (10 ) days from the date of this Order , what steps
the respondent has taken to comply herewith.
AND IT IS FUIRTI--IER ORDERED that the connplaint , insofar as it alleges
that the respondent has engaged in unfair labor practices within the
meaning of Section 8 (5) of the Act , be, and it hereby is, dismissed.
CIIAIRMAN MILLIS , concurring in part and dissenting in part:
I agree with that part of the Decision and Order which deals with
the direct infringement of Section 8 (1) of the Act. I dissent from
the dismissal of the 8 ( 5) allegation.
I would exclude from the appropriate unit at least 16 of the 20
watchmen-wards included by the majority . Except for the 4 watch-
men who are shown to engage in janitorial work and related tasks
the major part of their time , there is no showing that the watchmen-
guards spend any substantial amount of time in duties other than
patrolling and watching the plant. We have frequently excluded
such employees from a unit of production and maintenance employees
because of, a difference in their interests and functions .' While
21Mattep of Lincoln E'n/ineeivxq Company and Tool