J. Allen Smith & Co., Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1940

27 N.L.R.B. 1386 (N.L.R.B. 1940)

Ill the Matter of J. ALLEN SMITH & COMPANY, INC. and FLOUR MILL
WORKERS' UNION, LOCAL No. 22074
Case No. C-1666.-Decided November 15, 1940
Jurisdiction : flour, meal, and mill feed manufacturing industry.
Unfair Labor Practices
In General: employer's responsibility for activities of a supervisory official.
Interference, Restraint, and Coercion: anti-union 'statements: threatening em-
ployees with loss of existing benefits and with curtailed employment should
they join the union ; characterizing the union as "outside interference"
advance announcement of refusal to agree to possible collective bargaining
requests; stressing willingness to make individual adjustment of grievances
thereby impliedly attempting to forestall 'self-organization by eliminating a
major incentive for such employee action; allegations that respondent offered
inducements to various employees to leave or refrain from joining the union
and that it had characterized union organizers as "agitators," dismissed.
Discrimination: charges of discriminatory discharge, dismissed.
Remedial Orders: employer ordered to cease and desist unfair labor practices.
Mr. Clarence D. Musser, for the Board.
Messrs. Robert S. Young, James E. Atkins, and Sam E. Young,
of Knoxville, Tenn., for the respondent.
Mr. W. E. Lowe, of Knoxville, Tenn; ,,for the Union.
Mr. R. 0. Ross, of Knoxville, Tenn., for the A. F. of L.
.Mr. Bonnell Phillips, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT, OF THE CASE
Upon charges duly filed by Flour Mill Workers' Union, Local No.
22074, herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Tenth
Region (Atlanta, Georgia), issued its complaint dated January 9,
1940, against J. Allen Smith & Company, Inc., Knoxville, Tennessee,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1) 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,
were duly served upon the respondent and the Union.
27 N. L. R. B., No. 218.
1386
J. ALLEN SMITH & COMPANY, INC. 1387
With respect. to the unfair labor practices, the complaint alleged in
substance that the respondent, through its officers, agents, and super-
visory employees,-.by espionage, intimidation, threats, and induce-
ments, interfered with, restrained,' and coerced its employees in, the
exercise of the rights guaranteed in Section 7 of the Act.
On January 22, 1940, the respondent filed an answer to the com-
plaint, denying that it had engaged in the alleged ' unfair labor
practices.
Pursuant to notice, a hearing was held at Knoxville, Tennessee, on
February 23 and 24, 1940, before Henry J. Kent, the Trial Examiner
duly designated by the Board. The Board, the Union, and the re-
spondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard , to examine and cross -examine
witnesses, and to introduce evidence bearing on the issues was, af-
forded all parties. During the course of the hearing, the complaint
was amended without,objection by the addition of an allegation that
the respondent had, on or about December 16, 1939, discharged W. A.
Churchman, an employee, because of his membership in and activities
on behalf of the Union. The respondent denied the allegation.
At the conclusion of the Board's presentation of evidence, the
respondent moved that the complaint, in so far as it alleged that
the respondent had informed its employees that union organizers
were agitators, be dismissed for lack of evidence. The Trial Ex-
aminer granted this motion, but reserved ruling on a similar motion
that the complaint, in so far as it alleged that the respondent had
offered inducements to various employees to leave or to refrain from
joining the Union, be dismissed for lack of evidence. The latter
motion was subsequently denied by the Trial Examiner in his Inter-
mediate Report: During the course of the hearing rulings were
made by'the Trial Examiner on other motions and objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed, excepting the ruling on the motion
to dismiss the allegation of the complaint that the respondent had
offered inducements to various employees to leave or to refrain from
joining the Union. The motion to dismiss the complaint in this
respect is hereby granted.
On August 31, 1940, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties.' In
1 Prior to issuance of the Intermediate Report, the respondent , on March 13, 1940, filed
a^motion to reopen the hearing for the purpose of taking further evidence in the case.
The Board having granted the respondent ' s motion, the iespondent and the Board there-
after appeared by counsel before the Trial Examiner above named at Knoxville, Tennessee,
on June 10, 1940. The respondent at that time offered to «athdraw its motion that the
hearing be reopened and, with the consent of the Board , an order was thereupon entered
upon the record closing the hearing
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his Intermediate Report the Trial Examiner found that the respond-
ent had engaged in unfair labor practices affecting commerce within
the meaning of Section 8 (1) of the Act The Trial Examiner fur-
ther found that the respondent had not engaged in an unfair labor
practice within the meaning of Section 8 (3) of the Act, and accord-
ingly recommended that the complaint in this respect be dismissed.
Thereafter the respondent and the Union duly filed exceptions to
the Intermediate Report, and briefs in support thereof . At the request
of the respondent, notice was served upon the parties that a hearing
for the purposes of oral argument would be held before the Board at
Washington, D. C., on October 8, 1940. Prior to this date the respond-
ent and the Union notified the Board that they waived oral argument.
The Board has considered the briefs filed by the respondent and
the Union , and their exceptions to the Intermediate Report. Save
as'the exceptions are consistent with the findings , conclusions, and
order ' herein set forth, the Board 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
J. Allen Smith .& Company, Inc., a Maine corporation having its
principal office and place of business at Knoxville , Tennessee,' is en-
gaged in the manufacture , sale, and distribution of flour, meal, and
mill feed. During the year 1939 the respondent 's purchases of raw
materials , consisting principally of wheat and corn, amounted in
value to over $2,000,000. Over 70 per cent of such raw materials were
sold and shipped to the respondent from points outside -the State of
Tennessee . During the same period the respondent 's sales of finished
products amounted in value to more than $2,000,000, over 70 per cent
of such finished products being sold and shipped to points outside
Tennessee.
The Company employs approximately 150 employees.
H. THE ORGANIZATION INVOLVED
Flour Mill Workers' Union,"Local No. 22074, affiliated with the
American Federation of Labor, is a labor organization admitting to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
The Union began organizational activities , the first to occur in the
respondent 's plant, in June 1939 . On June 21, 1939, a union meeting
J. ALLEN SMITH & COMPANY, INC. 1389
was held with many of the respondent's employees in attendance. A
considerable number there signed applicatioil cards for membership in
the Union, and on July 1, 1939, this nucleus received a local charter
from the American Federation of Labor. -
Hugh R. Goforth, assistant to C. P. McDowell, the respondent's
plant superintendent, was, on July 1, 1939, in charge of the respond-
ent's mill operations during the abselice of McDowell from the plant.2
Having learned of union activity among the respondent's employees,
and having been informed, according to his own testimony, that an-
other union meeting was scheduled on Monday, July 3,3 Goforth "put
two and two together to make four," and decided that "if there were
any need for a union, there must be some complaint, some trouble
among the employees, what, I didn't know, and had no way of know-
ing." -
Although Goforth emphasized in his speeches to the respondent's
employees hereinafter discussed, and stated it to be a fact at the hear-
ing, that the respondent's employees had always been free to bring
individual grievances to the attention of the respondent's supervisory
officials, from foreman to president, Goforth proceeded to instruct the
respondent's.foremen to call two meetings among "representative cross
sections" of the employees. The first of such meetings was held in
the respondent's plant on July 1, 1939, at 3 p. in. at which time there
was a change in shifts so that Goforth was able to assemble from 10
to 12 employees as representative of the two shifts. The second was
held on the night of July 5 among six or eight employees of the third
shift.
The testimony as to what took place at these meetings is contradic-
tory. Goforth testified that he began his talks to the assembled em-
ployees by-stressing in effect the respondent's willingness to entertain
individual grievances. "I told them that . . . -there must be some
complaint, as they had always been free to take any complaints of any
nature, anything wrong with their work or whatnot, to their foremen,
then to Mr. McDowell, to me, to Mr. Smith [then president of the
respondent]." Goforth, according to his testimony, then gave assur-
ance "that they had the perfect right to join any organization they
please, including the union, and that equally true, it was that they
had a perfect right not to join anything they did not want to join."
Later in his speech Goforth, according to his testimony, "pointed out
the fact to them that we, over a period of years, had always done
everything for the men that we could, that was within the bounds of
reasonable business common sense," and then laid stress upon certain
' Goforth is now the respondent ' s vice president.
' Goforth's informant was apparently in error. The meeting was scheduled for Saturday
night, July 1.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee benefits such as a credit union, hospitalization, and group-
life insurance, which the respondent in part supported.
Even crediting Goforth's testimony in full, which, in view of testi-
mony herein subsequently discussed, we are unable to do, we are of
the opinion that Goforth's actions and statements were inherently an
illegal intrusion into the field of self-organization reserved exclusively
'to employees. As the Court said in National Labor Relations Board v.
The Falk Corporation,' "the position of the employer is ,ft most delicate
one . . . the voice of authority may, by tone inflection as well as by
the substance of the words uttered, provoke fear and awe quite as
readily as it may, bespeak fatherly advice." Here, at the very outset
of an attempt by the employees at self-organization, Goforth caused
his employees to be summoned into conference with him. This action
was, as far as the record reveals, unprecedented in the respondent's
plant. Goforth thereupon stressed the respondent's willingness Jo
entertain individual grievances, and implied that adjustments could
be made without collective bargaining. Such action not only indi-
cated the respondent's belief that collective bargaining was unneces-
sary, but also necessarily implied an attempt to forestall self-organiza-
tion by eliminating a major incentive for such employee action.5
Goforth further stated in these speeches that` the respondent "had
always done everything for the men that we could within the bounds
of reasonable business common sense," although he, had previously
stated that grievances, "anything wrong with their work or whatnot,"
could be pressed without collective action. The former statement
followed Goforth'ss assurance that the employees were free to join
or not join the'Union. The implication that collective bargaining
would fail, if undertaken as to-major purposes, is- clear. As we have
before held 6 and now hold, statements such as this, made in'advance
of any demands by' the Union, and at a time when the Union; is,first
seeking to establish itself as a bargaining agent, constitute an antici-
patory denial of possible advantages to be derived from collective
4102 F ( 2d) 383, 389 (C. C A 8), Board order enf'd in full , 308 U S 453
See Matter of The Stolle Corporation and Metal Polishers, Buffers, Platers and Helpers
International Union , 13 N L R B 370 ; Matter of The Jacobs Bros . Co, Inc and United
Electrical and Radio Workers of America , 5 N L R B 620; Matter of David E . Kennedy,
Inc and Isadore Greenberg , 6 N L R B 699 ; Matter of Charles, C. Hobart and American
Federation of Labor, 25 N L R B. 727
The effect of this action differs little from the actual granting of an unsolicited wage
increase for the same purpose . See Matter of The M . H Ritziaoller Company and Cooper's
International Union of North America , Local 28, 15 N L R . B. 15, enf ' d as niod: in 'The
M. H' Rstzwoller Co. v. National Labor Relations Board, decided May'8, 1940 (C. C. A. -7).
°Matter of Hawk & Buck Company, Inc . and Garment Workers of America , Local No. 229,
25 N L. R B. 837: Matter of Blue Bell-Globe Manufacturing Company and Amalgamated
Clothing Workers of America, 24 N L R. B. 126 . See also Matter of Blossom Products
Coi poration and International Ladies' Garment Workers' Union, 20 N L R , B-335 ; Matter
of Roberts Brothers , Inc. and Furniture Workers Union, Local 1561, 8 N. L. R. B. 925
J. ALLEN SMITH & COMPANY, INC., 1391
bargaining, and are obstructive of the employee's rights to self-or-
ganization. We find that Goforth, by calling the said meetings 7 and
by addressing the employees in the manner above set forth interfered
with,, restrained, and coerced the respondent's employees in the exer-
cise of rights guaranteed them by Section 7 of the Act."
The testimony of many of Goforth's auditors, however, indicates
that Goforth made additional anti-union statements. Joseph R.
Kitts, an employee and union member who was in attendance at the
first meeting, testified :
He-[Goforth] said, "I understand that you boys are forming )a
union here," and he says, "I want to find out something about it."
He says, "Every feller I ask; he says he don't know anything about
it. They all tell the same story. They don't know anything about
it," and he says then, "If you fellers are figuring on more.money
by this union, you might just as well forget about it." He said,
"Conditions certainly don't warrant a raise in wages at the present
time . . ." He said, "You have a credit union here which is no`
obligation to the company [respondent]." He said, "Now, if
you had a.union you wouldn't need this stuff-it would probably
be taken away from you." ... Mr. Goforth further stated that
we had insurance there that could be taken away from us and
probably would.
Emmett Howarton, like Kitts an employee of over 10 years stand-
ing, testified to much the same effect concerning the statements made
by Goforth :
Mr. Goforth .. . started off that he had been acquainted with
the union being here . . . and that they didn't need no outside
interference in the conduct of the company's business; . . . that
' See National Labor Relations Board v Griswold Mfg. Co. 106 F ( 2d) 713, (C. C A 3) :
"It is because of [Congress '] recognition that the employee is sensitive and responsive to
even the most subtle expression on the part of his employer, whose good will is so neces-
sary, that limitations have been placed upon the activities of the employer in carrying
out the principles of collective bargaining
8It should be noted that , as far as the record shows, about 1 9 of the approximately
21 employees in attendance at these meetings were at that time members of the Union,
and that 11 of them shortly thereafter sent letters of resignation to the Union Although
all testified that there was,no casual connection between Goforth s speeches and their with-
drawals from the Union, it is undoubtedly true that , as the Court recently said in Bethle-
hem Shipbuilding Corp . v National Labor Relations Board , decided October 8, 1940
(C. C A. 1), recognition of constraint " is a subtle thing requiring a high degree of intro-
spective perception ." The Trial Examiner , who observed the demeanor of the witnesses,
found in his Intermediate Report that "by the statements made at the two meetings,
Goforth sought to discourage the employees from joining or remaining members of the
Union His efforts met with prompt success . Several of those who -were present at
these meetings , and who -had already joined the Union , withdrew their membership, and
there was a marked decrease in the rate at which new members were acquired by the
Union among the respondent ' s employees " I
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the treatment of the men, that they had accident insurance and
hospital insurance and all that, it was no obligation to the com-
pany, and that the company would drop it if necessary.
Two other employees, Joseph Toney and Forster Turner, in substance
corroborated the testimony ' of Kitts and Howarton as to what oc-
,curred at the meeting on July 1.
According to the testimony of several of the employees summoned
on the night of July 5, Goforth reiterated in substance the statements
made at the first meeting. Hugh Bell testified :
Well, he brought up that there was being organized a union in
the mill, and that the company didn't have to recognize any such
union; and that if they wanted to they could shut the mill down
indefinitely and let the wheels rust . . . Then again as far as
the sick benefits and hospitalization and the credit union, he said
that could be discontinued at any time he saw fit . . .
Louis Vineyard, also present at this meeting testified that Goforth
stated that "We had hospitalization, and that the company paid a
certain percent of that . . . and if it ever became necessary they could
drop that if they saw fit." Vineyard and Earmon Bullen also sub-
stantiated Bell's statement concerning Goforth's threat that the re-
spondent might curtail its production schedule by "stocking up its
warehouses and shutting down for certain periods."
The respondent called a number of employees who were present
either at the first or second meeting to refute the testimony above set
forth. They denied that Goforth had actually or inferentially
threatened the employees with loss of existing benefits if self-organi-
zation became established, and denied that he had threatened to cur-
tail production in that event.
It may be noted, however, that all but two of these employees had
been members of the Union at the time when Goforth addressed them,
but shortly thereafter withdrew from membership.9 One of these
witnesses testified that Goforth had promised at one meeting to'aid
the employees "100 per cent" in joining the Union if they so desired, yet
Goforth in his testimony made no claim to having given this pledge.
It was admitted that another of the respondent's witnesses, Kermit
(Crump) Hall, who was the subsequent leader in the movement to re-
nounce union affiliation, was asked by Goforth at the first meeting if it
were not true that he had received sick benefits during an illness of
some 6 weeks duration. Upon replying in the affirmative, Hall was
asked, according to the undenied testimony of another witness, "Well,
why do you think we did that?" The inference that the respondent
9 See footnote 8, supra.
J. ALLEN SMITH & COMPANY, INC. 1393
would consider Hall ungrateful if he retained membership in the
Union is unescapable,10 as is the implication that sick benefits would no
longer be -forthcoming should the men establish self-organization.
Under the circumstances, and despite Goforth's denials, we find,
in view of the substantial union testimony above set forth, that Go-
forth actually and inferentially 11 threatened the respondent's em-
ployees with loss of existing benefits and with curtailed employment
should they join the Union, an organization which we find was char-
acterized by Goforth as "outside interference."
We find that the respondent, through the actions of Goforth, a
supervisory official whose conduct is attributable to the respondent,
has interfered with, restrained, and coerced its employees in the exer-
cise of their rights 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 purpose of
collective bargaining and other mutual aid and protection as guaran-
teed in Section 7 of the Act.
B. The alleged discriminatory discharge
The complaint was amended at the hearing to allege that the re-
spondent had discriminatorily discharged W. A. Churchman, an
employee, on or about December 16, 1939. The Union has filed ex-
ceptions to the Trial Examiner's recommendation that the complaint
be dismissed in this respect.
The record shows that Churchman, a union member, was absent
from the plant without having previously arranged for leave from
December 18, 1939, to December 26. Churchman testified that this
absence was occasioned by a cold, and that he had instructed his •wife
to call the plant on the afternoon of December 18 to report that he
was absent because of illness. This message was delivered to a watch-
man who subsequently informed the plant superintendent, McDowell,
that Churchman would be absent, but who, according to McDowell,
did not state to him that any reason for the absence was given.
McDowell testified that he heard, during the period of Churchman's
absence, that Churchman was working in a store owned by his brother-
'0 Another employee testified in this connection , but Goforth denied "that he [Goforth]
said that Crump [Hall] had received $20 a week , paid full pay and he didn ' t see why
that Crump would go ahead and join an organization like that , that the company had
been mighty good to him "
"Goforth hnnself admitted, as a previous witness for the respondent had testified, that
"When I did mention to one group the matter of life insurance , I said that many years
ago we put in life insurance when group insurance came out , because it was, we thought, a
good thing for the men We didn 't have to do it , but we put it in But from that time
on it occurred to me that might not be a very good thing to say, and I did not say it at all
all again " Yet Goforth, after it allegedly "occurred to him that ( it) might not be a
very good thing to say ," took no steps to disabuse the employees of the inferences they
might have drawn from his statement
.3 _ d42 S-I2--S9
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in-law and operated by his wife. Two employees were sent by Mc-
Dowell to investigate. They reported back to the superintendent
that they had seen Churchman in the store, apparently waiting on a
customer. Previously another employee had been dispatched one
morning by Churchman's foreman, Hendryx, to Churchman's home to
ascertain the reason for his continued absence. He reported to Hen-
dryx, and at the hearing testified, that he had been unable to gain
access to the house, which was apparently vacant. When Churchman
returned to work on December 26, he was discharged for "failure to
report to duty."
Neither Churchman nor his wife, who operated the store in question,
took the stand to deny the testimony that he was working at the store
during this pre-Christmas period.
We find that the respondent did not discriminate in regard to the
hire and tenure of employment of W. A. Churchman, thereby dis-
couraging membership in the Union. The complaint in this respect
will accordingly be dismissed.
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, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate and
substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act and to restore as nearly as possible the situation that existed
prior to the commission of the unfair labor practices.
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. Flour Mill Workers' Union, Local No. 22074, affiliated with the
American Federation of Labor, 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 re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act. ,
J. ALLEN SMITH & COMPANY, INC. 1395
3. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
4. The respondent has not discriminated in regard to the hire and
tenure of employment of William A. Churchman; thereby discourag-
ing membership in a labor organization, within the meaning of Section
8 (3) of the Act.
ORDER r
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 respond-
ent, J. Allen Smith & Company, Inc., Knoxville, Tennessee, its officers,
agents, successors, and assigns shall:
1. Cease and desist from in any manner interfering with, restrain-
ing, 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 purpose of collective bargaining
and 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) Post immediately in conspicuous places throughout its plant,
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating that the'respond-
ent will not engage in the conduct from which it is ordered to cease
and desist in paragraph 1 above, and that its employees are free to
become and remain members of Flour Mill Workers' Union, Local
No. 22074, or any other labor organization;
(b) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this order what steps the re-
spondent has taken to comply herewith.
A1D•IT Is FURTHER ORDERED that the allegations of the complaint
(1) that the respondent offered inducements to various employees to
leave or to refrain from joining the Union, and (2) that the respondent
characterized union organizers as "agitators," be, and they hereby are,
dismissed.
AND IT IS FURTHER ORDERED that the allegation of the complaint, as
amended at the hearing, that the respondent has engaged in an unfair
labor practice within the meaning of Section 8 (3) of the Act, be, and
it hereby is, dismissed.