Columbia Power Co.

National Labor Relations Board - Board Decisions

Apr 7, 1942

40 N.L.R.B. 223 (N.L.R.B. 1942)

In the Matter Of, COLUMBIA POWDER COMPANY and POWDER WORKERS
FEDERAL LABOR UNION No. 22377
,Case No. C-2018.-Decided April 7,1942
Jurisdiction : explosives manufacturing industry
Unfair Labor Practices
Interference, Restraint, and Coercion: questioning employees about the union
petition ; belittling the petition and the manner in which it `was circulated
aruging with; the employees against the feasibility, of their principal objective,
an increase in wages ; warning them that the respondent's products might be
boycotted if its employees organized an affiliated union ; threatening that the
unionization' of the plant might'result in curtailed production and a decrease
in personnel suggesting that the employees take their grievances directly to
the respondent.
Company-Doininated Union: high supervisory officials questioning and addressing
employees in an attempt to interfere with and discourage them in their efforts
to organize an affiliated union ; utilizing and dominating a meeting in the
respondent's office; pointing out that a wage increase was virtually impossible
when sought by an affiliated union, but a few days later capitulating immedi-
ately when requested by the dominated union; executing a contract with the
dominated union which, in most respects, was solely the respondent's product.
Discrimination: discharge of one employee because of his union membership and
activity ; allegations of, dismissed as to two employees.
Remedial Orders : employer ordered to cease and desist unfair labor practices;
dominated union disestablished; agreements with dominated union set aside;
employee discharged because of union membership and activity, reinstated
with back pay.
Mr. Patrick H. Walker, for the Board.
Mr. Edward G. Dobrin, of Seattle, Wash., and Mr. Russell R. Cas-
teel, of East'Alton, Ill., for the respondent.
Mr. Harold M. Tolle fson, of Tacoma, Wash., for the A. E. W.
Mr. H. S. Mcllvaigh, of Tacoma, Wash., for the Union.
Mr. George A. Koplow, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Powder Workers Federal Labor Union
No. 22377, herein'called the Union, the National Labor Relations Board,
40 N. L. R B., No. 35.
223
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the Board, by the Regional Director for the Nineteenth
Region (Seattle, Washington), issued its complaint, dated March 13,
1941, against Columbia Powder Company, Frederickson, Washington,
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), (2), and (3) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint, accompanied by notices of hearing,
were duly served upon the respondent, the Union, and American Ex-
plosive Workers, Local Union No. 1, Frederickson, Washington, herein
called the A. E. W.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent (1) on and after June 14, 1940,
dominated and interfered with the formation of the A. E. W. and
contributed support thereto by questions, statements, and acts dis-
couraging the organization of and membership in the Union and
,encouraging the formation of an unaffiliated organization, by encour-
aging certain. of its employees to undertake the formation of an un-
affiliated organization, by causing a meeting to that end to be held on
June 17, 1940, and by other acts; (2) on or about June 18, 1940, and
,thereafter, dominated and interfered with the administration of the
A: K W. and contributed support thereto by entering into a contract
with the A. E. W.' without genuine collective bargaining and when
said organization was not' the freely chosen representative of its
employees, by continuing to discourage membership in affiliated unions,
and by discharging employees Logan, McConnell, and Martin; (3)
during July 1940 discharged the three above-named employees because
.of their membership and activities in the Union and their failure
to join the A. E. W.; and (4) by the above and other acts interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On March 22, 1941, the respondent filed its answer admitting the
discharge of Logan, McConnell, and Martin, and the formation of
the A. E. W. by the employees, but denying the commission of any
unfair labor practices. On March 27 the A. E. W. filed its answer
denying the receipt of any support from the respondent and asserting
that it was a free and independent labor organization.
Pursuant to notice, a hearing was held at Tacoma, Washington,
from March 27 through April 7, 1941, and at Bel Air, Maryland, on
May 22, 1941, before Tilford E. Dudley, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent,
and the Union were represented by counsel or other representatives.
The A. E. W. appeared by counsel and filed a motion for leave to inter-
vene, which motion was granted. All parties participated in the
COLUMBIA POWDER COMPANY 225
hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues. A motion by the respondent to make the complaint more
definite and certain was denied. A motion for the taking of testimony
at.Bel Air, Maryland,-was granted. At the close of the Board's case
the, respondent' and the A. E. W. moved for dismissal of the com-
plaint. These motions were denied. During the hearing, counsel for
the Board, the respondent, and the A. E. W. moved to amend their
respective pleadings to conform to the proof. These motions were
granted. During the course of the hearing the Trial Examiner made
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed all the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On December 1, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all parties, finding
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section
8 (1), (2), and (3) and Section 2 (6) and (7) of the At. He recom-
mended that the respondent cease and desist therefrom and from giv-
ing effect to its contracts with the A. E. W., and that it take certain
affirmative action to effectuate the policies of the Act, including the
reinstatement with back pay of Logan, McConnell, and Martin. Ex-
ceptions to the Intermediate Report and a brief in support of such
exceptions were filed by the respondent, and "Objections" were filed
by the A. E. W.
Pursuant to notice served on all parties, a hearing was held before
the Board in Washington, D. C., on February 5, 1942, for the purpose
of oral argument. The respondent was represented by counsel and
participated in the hearing. The Board has considered the exceptions,
briefs,' and objections of the parties and, insofar as the exceptions are
inconsistent with the findings, conclusions, and order below, finds•them
to be without merit. -
Upon the entire record in the case, the Board makes the- following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Columbia Powder Company is an Illinois corporation engaged in
manufacturing explosives at its plant' near Frederickson, Washington.
During 1939 it purchased approximately 6,000,000 pounds of glycerin,
acids, sodium and ammonium nitrate, wood pulp, starch, apricot and
walnut shells, paper, boxes,-and other raw materials. Of these, more
than 52 percent was purchased and shipped to Frederickson from
points outside the State of Washington. During 1939 the respondent
455771-42-vol 40-15
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sold approximately 4,000,000 pounds of dynamite, its chief product, of
which more than 50 percent was sold and shipped,to points outside the
'State of Washington, some of it going to foreign countries. The
respondent admits that the greater portion of. its raw materials, sup-
plies, equipment, and products moves in interstate commerce.
II. THE ORGANIZATIONS INVOLVED
Powder Workers Federal Labor Union No. 22377, affiliated with the
American Federation of Labor, and American Explosive Workers,
Local Union No. 1, Frederickson, Washington, unaffiliated, are labor
organizations admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Prior to June 1940 no substantial attempt was made to organize the
respondent's employees, although at an earlier date there had been some
discussion concerning a union. Early in June, however, employee
Walter Young, sometimes accompanied by employee John S. McCon-
nell, made several visits to the Central Labor Council in nearby
Tacoma, Washington, and there conferred with H. S. Mcllvaigh secre--
tary of the Council, about a union for the respondent's employees.
McIlvaigh suggested that they affiliate with a Chemical Workers
Federal Labor Union and decide later whether they wanted a separate
union. On June 13 Young circulated among the respondent's em-
ployees a petition for membership in the Chemical Workers Union.
Several men signed it about 4.30 p. in., when the first shift finished
work and the second shift,stopped for its lunch period. That evening
after he finished work, at about 8: 30 p. m., Young, together with em-
ployees McConnell, Martin, Hanson, Robinson, Turner, Ketchum,
and perhaps others, visited the residences of various employees until
after midnight and secured signatures to the petition.
The next morning the night watchman, John Stable, reported to
Fulvio DeAngelis, the respondent's plant superintendent, that during
the night employees McConnell and Young had asked him to sign a
petition for higher wages. Employee Fred Wilman likewise reported
that some employees had visited him during the night and had se-
cured his name on the petition, telling him that it was a petition for
higher wages or for a grievance committee. Wilman told DeAngelis
that the men had deceived him "like wolves in sheep's clothing," be-
cause on coming to work he had heard that it was really a petition for
a.union. DeAngelis asked his assistant, Robert Clinton, to accompany
him through the plant on an investigation of the petition. Their first
stop was at the mix house, where Ketchum; in answer to DeAngelis'
• COLUMBIA POWDER COMPANY 227
questions, said that he had signed the petition without finding out
until that morning that it was for a union, but admitted that he, him-
self, had accompanied the men on the preceding night when they had
visited other employees to get signatures to the petition.'
DeAngelis and Clinton thereupon proceeded from building to build-
ing in the respondent's plant, interrupting the employees at their work
and questioning them concerning the petition and similar matters.
According to the testimony of a number of employees who were thus
questioned, DeAngelis sought to discourage any collective activity
and particularly the organization of an affiliated union. Thus, in the
case house DeAngelis was quoted by employees Turner and Nelson as
saying that if the employees .joiiied the C. I. 0., companies with A. F.
of L. unions would not buy the respondent's products, and that if the
employees joined the A. F. of L., companies with C. I. 0. unions would
not buy its, products; and further, that he did not see why the em-
ployees, had circulated the petition in such an "underhanded manner,"
instead of coming out in the open and discussing it with the company
officials before bringing in outsiders.
According to employees Young and Martin, in the warehouse De-
Angelis warned that with a union the respondent would have to put
the union label on its products and thus might not be able to sell to
customers who did not use that label, stated that he and the employees
had always been friendly, and suggested that "you boys could always
come up to see me when there was any trouble." Employees McConnell
and Hanson, in describing DeAngelis' respective conversations with
them, stated that DeAngelis expressed the same doubts as to whether
the respondent could sell its products to companies with a C. I. 0. or
A. F. of L. union if its employees belonged to the other union, and
informed them that if the employees organized a union and obtained
higher wages, the respondent would have to decrease its personnel and
lay off the newer men. In the shell house, DeAngelis was quoted by
employee Robinson as having voiced the same warnings concerning
the respondent's probable inability to sell to companies with a different
union, with the consequence that fewer men would be employed. In
addition to these examples, a- number of other remarks of the same
general tenor were attributed to DeAngelis by the above-named em-
ployees and by other employees.
DeAngelis admitted making this trip through the plant, but denied
making the statements regarding the respondent's inability to sell
to companies with a different union, denied telling employees that
the respondent might have to decrease its personnel, and denied sug-
gesting that the employees should take their grievances directly to
IKetchum and Wilman were killed in an explosion before the hearing The findings in
the above paragraph are taken from the testimony of DeAngelis and Clinton.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent . However, DeAngelis admitted that he questioned a
great many of the employees about the petition , that at least five told
him that it was a petition for a union and that they had signed it, that
he asked several employees what was the grievance that caused the
petition to be circulated , and that on learning of the dissatisfaction
with wage rates he pointed out to his listeners that it was virtually
impossible - to grant an increase , 'due to certain unexpected tax levies,
the cost of raw materials , advantages of competitors in the matter
of location and operating techniques , and various other factors. Clin-
ton corroborated DeAngelis in many of his denials, but contradicted
him in some respects. For example , Clinton admitted that DeAngelis,
in speaking with some of the employees , did raise the question of a
possible boycott of the respondent 's products , commented that "it
probably would be better to have such a petition circulated in the day-
time," and stated that he disapproved of their "sneaking around at
night" and circulating the petition "in the dark." We find, as did the
Trial Examiner , that the denials of DeAngelis and Clinton cannot be
credited and that DeAngelis, in the course of his investigatory tour of
the plant, questioned the employees about the union petition , belittled
,the petition and the manner in which it was circulated , argued with the
employees against the feasibility of their principal objective, an in-
crease in wages, warned them that the respondent 's products 'might
be boycotted if its employees organized an affiliated union, threatened
that the unionization of the plant might result in curtailed production
and a decrease in personnel, and suggested that the employees take
their grievances directly to the respondent. .
The respondent maintains that Wilman told DeAngelis on the
morning of June 14 that Ketchum and McConnell had almost had a
fight that morning concerning the petition, and that DeAngelis con-
ducted this tour because the ill will over the petition and the way it
was circulated might have , led to dangerous scuffling . However,
there was no evidence that there had been any scuffling or even any
arguments at the plant when DeAngelis started his investigation.
The "near fight" about which DeAngelis testified Wilman and
Ketchum told him on the morning of June 14 , did not take place,
according to witnesses Mc Connell ,, Hanson, Young, and Busby, before
late afternoon of that day, when Ketchum and Wilman asked that
their names be removed from the petition because of the fear that
the plant would close and they would lose their jobs. Young re-
plied that he had already sent the petition to the A. F. of L, after
which McConnell and Ketchum engaged in an angry discussion and
Young stepped between them to prevent a fight. We affirm the
Trial Examiner 's finding that the "near fight" between Ketchum
\and McConnell was not mentioned to DeAngelis on the morning of
COLUMBIA POWDER COMPANY 229
June 14, and that DeAngelis' tour of the plant and statement's to
the employees were not occasioned by the alleged scuffling or fear it.-
It is clear, and we find, as did the Trial Examiner, that the respond-
ent, by DeAngelis' activities set forth above, sought to discourage
any collective activity and particularly the formation of an affil-
iated union, and attempted to prevent its employees from engaging
in concerted activities for the purposes of collective bargaining or
other mutual aid or protection. The respondent thereby- interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
B. Domination of and interference with the formation and
administration of the A. E. TV.
In. the evening of the same day, June 14, DeAngelis telephoned
Crosby, the respondent's operating manager, at Uniontown, Penn-
sylvania, and reported the events of the day to him. That evening
also, employees Griffith, Overton, and Davis, none of whom had
signed the petition, -asked Young and Hanson if 'action on the peti-
tion could be deferred until the employees held a general meeting
to discuss the petition. They agreed, but no time or place was fixed,
and plans for the meeting were left indefinite.
On the following Sunday morning Overton 3 communicated with
Attorney Harold M. Tollefson, told him of the A. F. of L. petition,
and said that a group of employees, including himself, favored an
unaffiliated union. Tollefson advised Overton to see some of the
other employees and "get them moving in' the direction of an inde-
pendent union," offered to assist them in forming an organization,
and said that he would order some application and membership
cards. That afternoon Overton, accompanied by employee Reinke,
called on certain other employees to ascertain their attitude toward
an unaffiliated Union.
On Monday morning, June 17, Crosby arrived at the plant by air-
plane, conferred with DeAngelis, and about noon commenced to go
through the plant, visiting with the employees. He asked McConnell
how he was getting along and McConnell complained of his low wages,
Crosby replied that he would investigate the matter and added, ac-
2 Even if there had been a "near fight" eaily in the moi ping, as the respondent contends,
it is obvious that DeAngelis' actions Ni ere calculated to discourage the organizational activi-
ties rather than to unearth facts about the alleged friction. Accoiding to DeAngelis' own
testimony he did not even ask McConnell or an3 other employees about the alleged "near
fight," but instead talked only about the petition, wages, and similar matters Upon
learning unequivocally that the petition was for a union, he proceeded through the entire
plant, making the warnings, threats, and derogatory statements referred to above.
5 Overton was the highest paid non-supervisory employee in the plant and had worked
for Crosby prior to coming to Frederickson when he had been asked to sign the union
petition, he had inquired whether the matter had been submitted to the respondent.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cording to McConnell, "You know, Mac, . . . you wouldn't be here
if it wasn't for me." McConnell asked Crosby what he thought of
"the situation which had started to develop" at the plant. McConnell
testified that Crosby replied, "I know more about the unions than you
do," and added that the respondent's officials in the main office had
recently worked out a wage scale whereby men in the lower brackets,
such as McConnell, would obtain wage increases.'
After work that day a meeting was held in the respondent's office.
There is a conflict in the testimony, and we are unable to ascertain
whether Crosby or certain of the employees called the meeting. How-
ever, it was attended by virtually all the production employees and
supervisory staff, and by some office employees. Crosby took over the
meeting and invited discussion. Durilig the ensuing discussion he
advised the employees that the respondent's wage rates were on a par
with those in eastern plants, that the respondent was handicapped by
its location on the Pacific Coast since many of its materials came from
the East, and that raw materials had increased in cost without a corre-
sponding increase in the price of finished products. After clearly
indicating that for these reasons the respondent could not afford to
raise wages, Crosby, according to one of the employees, then called
for comments with regard to "the affair that was taking place."
In response to Crosby's request, a number of employees expressed
dissatisfaction with affiliated unions and one, Loney, suggested that
it would be cheaper if the employees had "their own private union, com-
pany union." In reply to a question from one of the men, Crosby told
the employees that he did not think a signature on the union petition
was binding. Young then spoke in favor of an affiliated -union, advert-
ing to grievances such as improving the road through the plant, reno-
vating the change house, stopping the "high-ball conditions," and
raising wages. Crosby inquired why the employees had not first called
the respondent's attention to these conditions instead of forming a
union .5 A heated argument between Young and Reinke followed,
culminating in the latter's proposal that a petition be circulated im-
mediately to "start a union of our own." Crosby thereupon told the
employees they would have to leave the respondent's property.
* Crosby admitted this conversation but denied making the remarks which McConnell
attributed to him The Thal Examiner noted in his Intermediate Report that Crosby was
hostile and evasive , particularly during his first appearance on the witness stand , and did
not consider him a reliable witness we agree with the Trial Examiner and find that
Crosby made the statements attributed to him by McConnell.
5 Crosby admitted comparing the respondent 's economic position and wage rates with
those of its competitors , and admitted expressing his opinion that a signature on the peti-
tion was not binding , but denied that he asked about "the affair that was taking place" and
denied inquiring why the employees had hot first come to the respondent . In view of
Crosby's admissions and the Trial Examiner 's failure to credit his denials , we find that
Crosby made the inquiries and comments set forth above
COLUMBIA POWDER COMPANY 231
Reinke testified without contradiction that lie and his friends went
down the roadway beyond the company line and that as employees
left the premises they "took down the names of those who wanted an
independent company union." In this manner they "got 27 or 28
names," whereupon Reinke, Loney, Barnes, and Ketchum returned to
the respond'ent's office,'-showed Crosby the paper, and asked if that
would make them the bargaining agent. Crosby, according to Reinke,
replied that it was not "significant evidence," and that "he couldn't do
anything with that." This request for recognition was repeated the
next day and the day following, but was refused by Crosby each time
on' the ground that the list of names "was not sufficient proof." '
The group interested in the A. F. of L. held a meeting that eve-
ning, June 17. Although 24 of the 41 production employees had
signed the A. F. of L. petition before DeAngelis and Crosby,inter-
fered, only 14 attended the meeting. They decided, nevertheless,
to apply for a charter and set up a separate A. F. of L. federal local
for the respondent's employees.
On the following evening the group favoring an unaffiliated union
held a meeting. Attorney Tollefson was present, guided the em-
ployees in their organizational efforts, and supplied applications
and membership cards which he had had printed in the name of
"American Explosive Workers, Local Union No. 1, Frederickson,
Washington," a name he had selected without consulting the or-
ganizers. The group elected Loney as chairman, discussed the vari-
ous types of available unions, and voted to form an independent
unaffiliated union. A committee was appointed to prepare a consti-
tution and bylaws with the help of their attorney. On Friday, June
21, Tollefson met the A. E. W. committee members and explained
to them the various provisions of the constitution and bylaws which
he had drafted. The committee members then went to the respond-
ent's 'office,' told Crosby that they had employed an attorney, showed
him the constitution and bylaws and their 29 signed applications,
and again sought recognition. Crosby made a list of the names on
the applications, said that he was not sure that they were the bar-
gaining agent, and asked what they wanted. The members said
that they had not yet formulated demands, but mentioned' their desire
for the same items to which Young had alluded in his speech on the
preceding Monday.
That evening, at the A. E. W.'s second meeting the committee
members reported that the organization "met with the approval of
[the] company." Tollefson explained the constitution and bylaws,
which were adopted with some minor amendments, Loney was elected
president, and Overton, Barnes, and Mann were elected to the-griev-
ance committee. A proposed wage scale was also agreed upon.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Within the next few days the A. E. W. grievance committee nego-
tiated with Crosby regarding wages, and after two conferences an
increase satisfactory to the membership was agreed upon.
Crosby then prepared a contract setting forth recognition of the
A. E. W. for its members only, an elaborate wage scale, a provision
for consideration of seniority in making lay-offs and promotions, a
procedure whereby grievances were to be taken up by the individual
employee with his supervisor before reporting to the A. E. W., and
provisions against lock-outs, strikes, and closed-shop agreements.
On- none of these matters, except a part of the wage scale, had there
been any bargaining between the respondent and the A. E. W., or
even any request by the A. E. W. On June 29, Crosby showed the
contract to the A. E. W. committee members and some of its officers,
who questioned the wording in a few places but nevertheless signed
it. Overton, called as a witness for the A. E. W., admitted, and we
find, that the contract was not read at a membership meeting of the
A. E. W. On March 1, 1941, after several conferences, an "Agree-
ment of Amendment" was signed granting some concessions on wage
increases sought by the A. E. W., but making no other modifications
in the original contract. From time to time the A. E. IN. has also
secured the adjustment of grievances -concerning working conditions.
We have found above that the first serious attempt to organize
the respondent's employees came on June 13, 1940, when the union
petition was circulated. The following day, as soon as the petition
came to the respondent's attention, DeAngelis questioned and ad-
dressed the employees extensively in an attempt to interfere with
and discourage them in their efforts to organize an affiliated union.
Immediately thereafter, one of the employees began to explore the
possibilities of an unaffiliated union. The respondent lost no time
in following up DeAngelis' campaign of interference and intimida-
tion. On June 14 DeAngelis telephoned Crosby, giving him the
results of his investigation. On June 17, Crosby arrived by plane
and proceeded at once to visit the employees and to utilize and domi-
nate a meeting in the respondent's office where, in the presence of
the supervisory employees, he explained why the respondent was
opposed to the demands which constituted the principal reasons for
the A. F. of L.'s petition. With Reinke's announcement that he was
going to form a union in opposition to the A. F. of L. and to get
signatures immediately, Crosby concluded the meeting. By that
time the respondent had manifested to its employees that it would
favor an unaffiliated union.
The movement for an unaffiliated union, started after DeAngelis'
anti-A: F. of L. talks the preceding Friday, gained immediate mo-
mentum as a result of Crosby's handling of the June 17 meeting.
COLUMBIA POWDER COMPANY 233
Within a few minutes 27 employees signed a petition for such an
organization, and that evening 10 of the 24 signers of the A. F.
of L. petition failed to attend the A. F. of L. meeting. While the
respondent pointed out on June 14 and June 17, when a wage increase
constituted the spur to the A. F. of L.'s organizing campaign; that
suchranincrease -was virtually- impossible, it capitulated immediately
upon the formation of the A. E. W., and by June 24, Crosby agreed
to increase wages, in some instances less and in some instances even
more than those sought by the A. E. W.° Within another few
days the respondent executed a contract with the A. E. W. which, in
all matters except some of the wage increases, was solely the re-
spondent's product, prepared without prior consultation with the
A. E. W. committee members and adopted by the committee without
discussion other than as to minor matters of form. We conclude
that the respondent expressed to its employees its hostility toward
the A. F. of L. and its preference for an "independent" union, that
the employees in their formation and administration of the A. E. W.
were responding thereto, and that by entering into the above con-
tract the respondent utilized the A. E. W. to frustrate 'self-organiza-
tion among its 'employees and to defeat genuine collective bargaining
with them.
We find, as did the Trial Examiner, that the respondent dominated
and interfered with the formation and administration of the A. E. W.
and contributed support thereto, and that it thereby and by its
entire course of conduct including questioning the employees about
the union petition, belittling the petition and the way it was circu-
lated, arguing with the employees against the possibility of an
increase in wages when the A. ' F. of L. sought it and capitulating
immediately upon the A. E. W.'s request, warning its employees that
.the,, respon.dent's,products might be boycotted if they organized an
-affiliated., union, threatening that,the unionization of the plant might
result in curtailed production, and suggesting that the employees
° In National Labor Relations Board V. W A. Jones Foundry and Machine Company, 123
F (2d) 552 (C. C. A 7), enforcing Matter of W. A. Jones Foundry and Machine Co. a
Corporation and International 4ssociation of Machinists, District No. 8, affiliated with the
American Federation of Labor, 30 N L R B 809 , the Court said : -
Thus we have the situation of the Company's chief executive officer telling its em-
ployees of the Company s financial enibariassment on November 20, and pointing out
to them the necessity to keep wages in line if the Company was to stay in business, and
on November 27, the Company had monev for a wage mciease, and a brand new inde-
pendent union with which to negotiate the wage increase, . . From a bad finan-
cial situation on November 20 and a wauiing that wages were to be kept in line, the
Company to November 27 had experienced a great change and suddenly found itself
able to increase wages for everyone, and that it had conveniently at hand the favored
independent union with which to negotiate the increase These acts of the Company
were intended to influence the employees The promptness with which the wage in-
crease and old abandoned plans therefor were resurrected, followed a pattern of
effective influence everted upon the employees, and it may fairly be inferred that this
was done to discourage the union ' s organization
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take their grievances directly to the respondent, interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
C. The discharges
1. John S. McConnell
John S. McConnell commenced work for the respondent in No-
vember 1939. He worked outside the plant and also, from time to
time, inside the different buildings, such as, the case .,house, and
the boiler room. He ran the crimping machine, crimping the ends
of the paper shells in which explosive powder is encased, and also
helped put the powder shells into boxes preparatory to shipping.
In addition, he engaged in miscellaneous jobs such as loading cars
and operating the truck. At various times, when working directly
with powder, McConnell became ill and required medical treatment.
On Monday, July 8, 1940, McConnell, at his request, was granted
permission to take some time off from work. There was a misunder-
standing as to the length of the leave, however. Clinton told Mc-
Connell that he could take "the balance of the week" off, com-
mencing on the following, morning, while McConnell received, the
impression that his request for "a week or two weeks off" had been
granted.
The next day McConnell commenced to take his time off, and
DeAngelis wrote Crosby in Illinois a special letter about McConnell,
stating that he had asked for a whole week off, and that DeAngelis
had then communicated with a former employee, Van Ingen, and
put him to work in McConnell's place with the understanding that
he might be laid off at any time. DeAngelis added, in his letter, that
he hoped to be able to keep Van Ingen busy for the balance of the
summer and that McConnell did not seem to lie very dependable on
the gelatin crimper job "as it appears he has outside interests which
interfere with his work."
On July 11 Crosby replied that he had received DeAngelis' letters
of July 9 and 10,7 that he was surprised to learn that McConnell
"takes so much time off from work," that he agreed with DeAngelis
that "we cannot depend on him for work in the gelatin house," and
that he "would recommend that you replace him." He recalled that
Van Ingen was an experienced packer with more service that Mc-
Connell, that he had asked for a leave of absence the preceding fall,
and that it was his, Crosby's understanding, that Van Ingen was
to be put back to work. He also "insisted" that DeAngelis decrease
7 DeAngelis' letter of July 10 was not offered in evidence Its contents and the reasons
for writing it are not revealed in the record
COLUMBIA POWDER COMPANY 235
the force at the plant, giving preference to the "older men in service,"
the supervisors, and the specialized workers s
On the following Monday morning, July 15, about 8 or 8: 30, Mc-
Connell went to the plant to ask DeAngelis for a requisition to see
the doctor and have a check-up on his health. According to De-
Angelis' testimony, DeAngelis asked McConnell why he had not
reported for work that morning, and McConnell replied that he
was not supposed to. DeAngelis testified that he told McConnell,
"Yes; you were. We were depending on you to be on hand," and
that McConnell said, "Well . . . I have made other plans for to-
day and . . . if I had known I was to report for work I would have
let you know." DeAngelis answered that McConnell's indifference
to his work could not be tolerated, that it was necessary to replace him
at his present job, and that the respondent would let him know
if there was any other work available. The respondent never called
him to return to work and McConnell was, in effect, discharged at
that time. On that day DeAngelis wrote Crosby a third letter
reporting the facts, substantially as found above.
The respondent contends that McConnell was discharged on July
15 because of "his failure to show up or notify the company of his,
absence without good cause being shown," in violation of a posted
rule, and that this was the reason given to McConnell and to the
union grievance committee which inquired about the discharge. The
rule referred to stated that "Employees who do not report for work
or send some word to the management are liable to be considered as
having left the service."
The record clearly establishes the manner in which the rule was
applied. Thus, Clinton, who succeeded DeAngelis as plant superin-
tendent, testified that violators of the respondent's regulations are
not ordinarily discharged immediately but are first warned, and that
"these warnings very often have been repeated." He added that the
respondent tried "to be as lenient as possible and still enforce the
rules," and that the penalty for infractions depends on the adequacy
of the excuse. The record contains several instances of employees
violating this regulation and others and sustaining no more than
a warning or a minor penalty. McConnell had previously been
absent from work a total of 141/2 working days during his employ-
ment with the respondent, but it was admitted by Clinton and Super-
visor Sorenson that iii each instance McConnell had been granted
leave or had reported in a satisfactory manner. Even if there had
not been the above-mentioned reasonable misunderstanding regard
s These instructions , if carried out, would have resulted in the " lay-off of McConnell.
However, the record does not show that the force was decreased at this time , except for the
discharge of McConnell and the other two employees discussed below.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the length of the leave granted, this would have constituted
McComnell's first unexecused absence. Clearly the penalty of dis-
charge was. more severe than the respondent usually exacted in
similar circumstances.
While the above infraction was the only reason for the discharge
given to McConnell and the grievance committee, the respondent-
urges in its brief that "the episode of July 15 was the straw which
,broke the camel's back," because throughout his employment Mc-
Connell had demonstrated that he was "an unqualified, incompetent
and unsatisfactory workman." In support of its contention the
respondent points to evidence showing that there had been numerous
complaints about the quality of McConnell's work and that he had
once threatened Clinton with a shovel. The record shows that this
"shovel incident" and most of the complaints about McConnell's
work occurred many weeks before July 15. Moreover, McConnell
had-never been warned or subjected' to any disciplinary measures
except that DeAngelis testified vaguely: "I am sure we [DeAngelis
and Clinton] talked with McConnell about his work, . . . I do not
recall any definite instance."
Finally, the respondent claims that McConnell is physically unfit
to work directly with powder. While the Iespondent's position is
not clear, it appears that it is not advancing McConnell's alleged
physical incapacity as a reason for his discharge, but as further proof
that he was "unqualified, incompetent and unsatisfactory." ° Clin-
ton and Crosby testified that when workmen are initially employed
by the respondent they must be able to perform work directly with
powder, or "in powder," as well as "outside work" in the plant. For
that reason McConnell, the same as other employees, was given a
physical examination by the 'respondent's physician before being put
to work, and was given periodic examinations thereafter. Clinton
testified also that from' time to time regular employees are transferred
from work "in powder" to "outside work" upon advice from the re-
spondent's medical department.10 McConnell was in this latter cate-
gory of employees, often becoming ill when coming into direct contact
with the powder. No reason appears why he should not have been
treated the same as other employees ordered by the respondent's physi-
cian not to continue working directly with powder, or why he should
be considered less qualified for work in the respondent's' plant than
such employees."
6 The respondent 's counsel , in arguing before the Board , stated unequivocally • "
our position has been consistent We didn ' t fire him because he was sick. We fired him
because lie was a bad workman, and because lie specifically violated a rule . .
10 Crosby explained that while it was not the respondent ' s policy that an employee who
could not work Ni ith powder would necessarily be given outside work, yet "we try to accom-
modate our men, as much as possible "
11 The respondent , in its brief , contends that McConnell's lack of proper physical require-
ments "is substantiated by his claim for compensation for occupational disease submitted
COLUMBIA POWDER COMPANY 1 237
McConnell was one of the earliest and staunchest of the union
adherents, accompanying Young to see Mcllvaigh even before the peti-
tion was circulated, visiting other employees to get signatures on
the petition, and continuing in his loyalty until his discharge.
Clinton admitted that he knew McConnell was a union member at
the time of his discharge, and DeAngelis conceded that he "assumed
that McConnell was one of the, men who was in the group that had
circulated this petition and was favoring the formation of • some
union." We find that the respondent knew of McConnell's union
membership and activity before his discharge.
From all the evidence We are convinced that the respondent did
not discharge McConnell for his failure to report for work on July
15 or because he was unqualified, incompetent, or unsatisfactory.
We are convinced, as was the Trial Examiner, that before July 15
the respondent had decided to terminate McConnell's employment
because of his prominent activity on behalf of the Union and his
continued. support of the Union in opposition to the A. E. W., as
plainly intimated by the threats made by DeAngelis to reduce the
force and to lay off McConnell among the first.'2 We find, as did
the Trial Examiner, that by the discharge of McConnell the respond-
ent has discriminated in regard to his hire and tenure of employment,
thereby discouraging membership in the Union and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act 13 , '
2. Julian Logan
Julian Logan was hired in April 1940 to push "buggies" or trucks
loaded with powder throughout the plant, and was told that his job
would probably be temporary but that it might become steady. He
to the Department of Labor and Industries of the State of Washington " However, McCon
nell testified that he had had no intention of filing a claim but had merely executed a form
at the request of the physician who examined him, to enable the physician to collect hie
fee foi the examination The respondent's counsel admitted in his argument before the
Board that 1McConnell did not press this claim for compensation and that the respondent
secured dismiss•il of it by furnishing the Department with a transcript of 'McConnell's
above-mentioned testimony in the instant proceedings. We accept McConnell's explanation
of the incident, as apparently the respondent did also, and find that this "claim" cannot
be relied upon as evidence of McConnell's mabilit) to work in the respondent's plant.
12 McConnell testified that on June 14 DeAngelis told him he might be one of the first to
be discharged, if a union came in, since he was an inexperienced man Hanson testified
that DeAngelis also told him that day that if the Union obtained higher wages the respond-
ent would have to lay off some of the newer men, such as McConnell DeAngelis, cor-
roborated by Clinton, denied having made either of these statements The Trial Examiner
did'not credit the denials, nor do we. We find, as did the Tiial Examiner, that the state-
ments were made
13 The respondent in its brief further contends that the '*most eloquent testimony" that
McConnell was not discharged for union activities,is the fact that two employees who were
more active in the Union ' s cause are still on its pay roll We have considered this circum-
stance, but are not persuaded that it establishes that the respondent has not discriminated
against McConnell
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lived six miles from the plant, had no telephone, and usually went
to and from work in his own automobile. On the evening of June
30, 1940, too late to notify the respondent's office, Logan received
word that he was needed in nearby Tacoma early the next morning.
Logan therefore took the next day, July 1, ,off work without notice,
arriving in Tacoma about 7 a. in., the time at which he was due to
report to work on the respondent's, premises.
On July 2, Logan went to work as usual. After he had been work-
ing for an hour, Clinton and DeAngelis asked him where he had
been the preceding day. Logan explained substantially as found
above, stating that it was impossible for him to notify the respondent
either during the evening of June 30 or during the morning of July
1, since there would be no one at the plant- until at least 7 a. in., and
that he had not believed it necessary to telephone the plant after
he arrived in town because the respondent would probably already
have had someone in his place. DeAngelis replied that Logan should
have telephoned either him or Clinton at their homes and said : "We
cannot have men that are of that irresponsible nature; I will have
to let you go."
The respondent maintains that it discharged Logan as part of a
plan to reduce plant personnel, because he violated the above-men-
tioned rule regarding absences, and because he' was an inefficient
and temporary workman. With regard to the "no-absence" rule,
we have noted above, in discussing McConnell's case, that the severity
of the penalty for violation depended upon whether the employee
was able to give a satisfactory excuse for his absence. During his
two months' employment Logan had never been absent from work
until this incident, or if absent, he had been excused. On the other
hand, the record shows that Logan's absence resulted in delaying the
operation of the respondent's entire production line for one-half
hour. It is clear, also, that Logan was hired originally as a tem-
porary employee. In addition, Sorenson, Clinton, and DeAngelis
all testified , without contradiction, that Logan was not an efficient
workman, and DeAngelis said that it had been necessary for Clinton
and DeAngelis to spend "considerable time with him . . . show-
ing him the importance of planning his work."
Logan was not particularly active in union affairs , although his
adherence was steadfast. His signature was the last one on the
union petition and he did not participate in the solicitation of signa-
tures from other employees . It does not clearly appear that the
respondent knew of Logan 's union membership or activity prior to
his discharge.
COLUMBIA POWDER COMPANY 239
We find that the evidence is insufficient to establish that Julian
Logan was discharged because of his union membership or activity.
We shall, accordingly, dismiss the complaint in this respect.
3. Ray Martin
Ray Martin commenced work for the respondent in May 1939.
He ran the gelatin crimping machine for 4 or 5 months and then
was transferred to outside work because of the effect of the powder
on his health. In July 1940 he was assisting employee Hokanson
in a rush job consisting of the erection of a storage shed for fuses
which were then temporarily stored in the office building. He lived
alone in a remote cabin and rode to work with employees Hokanson
and Balthrope. '
On the morning of July 22 Martin, according to his testimony,
told Hokanson and Balthrope that he was sick and was not going
to work. When DeAngelis asked the latter two employees why
Martin had not arrived, they replied that when they had called
for him he had said that he was not coming to work. According
to DeAngelis' uncontradicted testimony, he asked if Martin was sick
and the men replied that they did not think so and that Martin had
not sent word to that effect.
DeAngelis stated without contradiction that the next morning
when he asked Martin why he had not been at work the preceding
day, Martin said that he had not "felt like" coming to work and
had thought that he would take the day off. DeAngelis replied :
"That is the wrong attitude . . . We depended upon you." DeAn-
gelis then- said that Martin had broken a rule by being absent
without sending notice, and Martin according to his testimony, an-
swered : "I told the boys that I was sick-I didn't tell them to tell
[you]. I took it for granted that they would, but if they didn't,
I had broken a rule." DeAngelis testified without denial that he
then commented that although, Martin had been a "good fellow,"
nevertheless he was going to let him go because of his attitude and
Martin made no protest but replied that he would "take his
medicine."
The respondent contends that Martin was discharged primarily
for violating the above rule regarding absences, without an adequate
excuse. On previous occasions when he had missed work Martin
had telephoned the respondent or had left word with other employees,
and his absences had been excused. Another employee, Colvin, who
lived in a remote spot and did not have convenient access to a tele-
phone, had made an arrangement to have his absences due to illness
excused without sending notice. However, Martin had made no
such arrangement.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Martin's infraction does not seem to have been a grievous
breach of the rules, it is apparent that DeAngelis was not unreason-
able in being suspicious of Martin's excuse, in view of the fact that
Hokanson and Balthrope told DeAngelis that they had talked to
Martin but did not think be was-sick. The record shows also- that
DeAngelis had had to reprimand Martin several, times for permitting
his personal habits to interfere with his work. The respondent fur-
ther contends that it was ignorant of Martin's union membership
or activity.- Although Martin had signed the union petition and
had accompanied certain other employees on their visits to solicit
additional signatures on June 13, the evidence does not convince us
that the respondent knew of Martin's union membership or activity
prior to his discharge.
Although we are not entirely, free from doubt, we are unable to
agree with the Trial Examiner's finding that this discharge was
discriminatory. Under all the circumstances, we find that the evi-
dence is insufficient to support a finding that Ray Martin was dis-
charged because of his union membership or activities. We shall,
accordingly, dismiss the complaint in this respect.,
IV. THE FFFECP OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed 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 respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action which we find necessary to effectuate the
policies of the Act.
We have found that the respondent dominated and interfered
with the formation and administration of the A. E. W. and contrib-
uted support to it. We shall therefore order the respondent to with-
draw all recognition from said organization as the representative
of its employees for the purpose of dealing with the respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of work, and-to disestablish it as
such representative.
We have found that on or about June 29, 1940, the respondent
executed a contract with the A. E. W. and on March 1, 1941, an
COLUMBIA POWDER COMPANY 241
"Agreement of Amendment" of said contract. Both the contract
and the amendment are still in effect. By these agreements the re-
spondent utilized an employer-dominated labor organization to frus-
trate self-organization and to defeat genuine collective bargaining
by its employees. We shall therefore' order the respondent to cease
and desist from giving effect to said agreements or to any extension,
renewal, modification, or supplement thereof, or to any superseding
contract which may now be in force. However, nothing in the order
shall be construed as a requirement that the respondent vary or aban-
don the wage, hour, or other substantive features of its relations
with the employees themselves which the respondent has established
in performance of the agreements or any extension, renewal, or
modification thereof.
We have found that the respondent discharged John S. McConnell
and thereafter refused to reinstate him for the reason that he joined
and assisted a labor organization and engaged in concerted activities
for the purpose of 'collective bargaining and other mutual aid and
protection. We shall therefore order the respondent to offer him
immediate and full reinstatement to his former or a substantially
equivalent position without prejudice to his seniority or other rights
or privileges, and to make him whole for any loss of pay he has suffered;
by reason of his discharge, by payment to him of a sum of money
equal to the amount which he would normally have earned as wages
from the date of his discharge to the date of the offer of reinstatement,
less his net earnings r4 during said period.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Powder Workers Federal Labor Union No. 22377 and American
Explosive Workers, Local Union No. 1, Frederickson, Washington,
are labor organizations, within the meaning of Section 2 (5) of
the Act.
2. By discriminating in regard to the hire and tenure of employment
of John S. McConnell, thereby discouraging membership in Powder
Workers Federal Labor Union No. 22377, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
i4By "net earnings ' is meant earnings less expenses such as for lianspoitation, room
and board, incurred by an employee in connection with obtaining work and v%orkmg else-
where than for the respondent, which would not have been incurred but foi his unlawful
discharge and the consequent necessity of his seeking employment elseNNhere See Matter
of Crossett Lumber Coni pang and United Bi otlierhood of Cai pentei s and Jeiners,o f America,
Lumber and Sawmill Workers Union, Local 2590, 8 N L R B 440 Monies received for work
performed upon Federal, State, county, municipal, of other work-relief projects shall be
considered as earnings See Republic Steel Corporation v AT L R B , 811 U S 7
455771-42-vol ' 40--16
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By dominating and interfering with the formation and ad-
ministration of American Explosive Workers, Local Union No. 1,
Frederickson, Washington, and contributing support to it, the re-
,pondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (2) of the Act.
4. By-interfering with, restraining, and-coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act,
the respondent has engaged in and is engaging in-unfair labor
practices, within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
6. The respondent has not discriminated in regard to the hire
and tenure of employment of Julian Logan and Ray Martin, within
the meaning of Section 8 (3) of the Act.
ORDER
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 the
respondent, Columbia Powder Company, Frederickson, Washington,
its officers, agents,, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Powder Workers Federal Labor
Union No. 22377, or any other labor organization of its employees,
by discharging or refusing to reinstate any of its employees, or in
any other manner discriminating in regard to their hire and tenure
of employment ;
(b) Dominating or interfering with the acministration of the
American Explosive Workers, Local Union No. 1, Frederickson,
Washington, or with the formation or administration of any other
labor organization, and from contributing support to said labor
organization, or to any other labor organization;
(c) Recognizing the said American Explosive Workers, Local
Union No. 1, Frederickson, Washington, as the representative of any
of its employees for the purpose of dealing with the respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment;
(d) Giving effect to the Agreement of June 29, 1940, or the Agree-
ment of Amendment of March 1, 1941, with the American Explosive
Workers, Local Union No. 1, Frederickson, Washington, or to any
extension, renewal, modification, or supplement thereof, or to any
superseding contract with said organization which may now be in
force.
COLUMBIA POWDER COMPANY 243
_(e) In any other 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 con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to John S. McConnell immediate and full reinstatement
to his former or substantially equivalent position without prejudice
to his seniority and other rights and privileges and make him whole
for any loss of pay he may have suffered by reason of the respond-
ent's discrimination against him, by payment to him of a sum of
money equal to that which lie normally would have earned as wages
from the date of his discharge to the date of the offer of reinstate-
ment, less his net earnings during said period;
(b) Withdraw all recognition from American Explosive Workers,
Local Union No. 1, Frederickson, Washington, as the representative
of any of its employees for the purpose of dealing with the respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, and completely
disestablish American Explosive Workers, Local Union No. 1, Fred-
erickson, Washington, as such representative;
(c )Post immediately in conspicuous places in its plant at Fred-
erickson, Washington, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its em-
ployees stating: (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs
1 (a), (b), (c), (d), and (e) of this Order; (2) that the respondent
will take the affirmative action set forth in paragraphs 2 (a) and
(b) of'this Order;-and (3) that the respondent's employees are free
to become or remain members of Powder Workers Federal Labor
Union No. 22377 and that the respondent will not discriminate
against any employee because of membership in or activity on behalf
of that organization;
(d) Notify the Regional Director for the Nineteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER- ORDERED that the complaint be, and it hereby is,
' dismissed . insofar as it alleges that the respondent has engaged' in
unfair labor practices within the meaning of Section 8 (3) of the
Act, with respect to Julian Logan and Ray Martin.
CHAIRMAN MILus *took no part in the consideration of the above
Decision and Order.