Kentucky Tennessee Clay Co.

National Labor Relations Board - Board Decisions

Apr 29, 1943

49 N.L.R.B. 252 (N.L.R.B. 1943)

In the Matter of KENTUCKY TENNESSEE CLAY COMPANY, A CORPORA-
TION and INTERNATIONAL UNION OPERATING ENGINEERS, LOCAL 181,
AFFILIATED WITH TIDE A. F. OF L. and INTERNATIONAL HOD CARRIERS,
BUILDING AND COMMON LABORERS UNION OF AMERICA LOCAL 1214,
AFFILIATED WITH THE A. F. OF L.
Case No. C-2468.-Decided April 26, 10.E
DECISION
AND
ORDER
On December 24, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and that it had not engaged in certain other unfair labor practices,
and recommending that it cease and desist from the unfair labor
practices found and take certain affirmative .'action, as set out-in the
copy of the Intermediate Report attached thereto, and that, the com-
plaint be dismissed as to the remaining allegations. Thereafter,' the
respondent filed exceptions to the Intermediate Report and a -brief
in support of the exceptions. Oral argument, in which only the
respondent participated, was had before the Board on April 15, 1943.
The Board has considered the rulings of the Trial Examiner at the
hearing and finds that no prejudicial errors were committed. The
`rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's brief and exceptions, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the exceptions and
qualifications noted below : .
1. The Trial Examiner found that Brack Clapp was laid off from
May, 18 to May 26, 1942, because of his leadership of the miners, and
his union interest and activity. We do not concur in this finding.
While the matter is not entirely free from doubt, we feel that the
evidence is insufficient to warrant a finding that Clapp was a leader
of the miners and engaged in union activity prior to his lay-off, and
that the respondent had knowledge of such leadership and-activity.
We find, therefore, that the allegation of the complaint that Clapp was
discriminated against, within the meaning of Section 8 (3) of the Act,
is without support.
49 N. L R . B, No. 31. '
252
KELNNT'U,CKY T'ENi1VESSEE CLAY. CtiMPANY
ORDER `
253
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Kentucky Tennessee Clay
Company, a corporation, Mayfield, Kentucky, its officers, agents, suc-'
cessors, 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 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) Post immediately in conspicuous places at its mine at May-
field, Kentucky, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stating
that the respondent will not engage in the conduct from which it is
ordered to cease and desist in paragraph 1• of this Order;
(b) Notify the Regional Director for the Fourteenth 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, insofar as it alleges
(1) that the 'respondent discriminated against Brack Clapp within
the meaning of Section 8 (3) of the Act, and (2) 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.
INTERMEDIATE REPORT
311 Ben E Cooly. fur the Board
Messrs. Seth 1' Boaz arid John Th Mr,Donald, of Ma^fielcl, Ky, and Fiancis if.
Cailee and Richard F. Moll, of St. Louis, Mo, for the respondent
Mr. Leslie Atherton, of Paducah , Ky, for the Engineers.
Mr. Joseph S. Freeland and Mr. W. G. McCloud, of Paducah , Ky., for the Hod
Carriers.
STATEMENT OF THE CASE
Upon a first amended charge duly filed on August 15, 1942, by the International
Union Operating Engineers, Local 181, A. F. of L., herein called Engineers, and
International Hod'Carriers, Building and Common Laborers Union of America,
Local 1214, A. F. of L., herein called Hod Carriers, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Eleventh Region
(Indianapolis , Indiana ), issued its complaint dated November 12, 1942, against
Kentucky Tennessee Clay Company, a corporation, Mayfield , Kentucky, hereni
264 - DECISIONS-=OF-NATJIONAL LABOR RELATIONS BOARD
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), (3) 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,
charge, first amended charge , and notice of hearing thereupon were duly served
upon the respondent and the Unions.'
With respect to the unfair labor practices , the complaint alleged, in substance,
that the respondent : ( l) from on or about February 20, 1942, down to the time
.of issuance of the complaint, engaged. nn a preconceived and continuous course
of action 'for the purpose of interfering with the selforganization of its em-
ployees, by stating that it would never sign an agreement with the Unions, that
it would shut down its plant if the Unions came in, that there was no reason
for its employees to organize , that it disliked outsiders to tell it what to do, that
the employees would not favor the Unions; and that the Unions would drive
everybody crazy ; by interrogating employees about the Unions and union meet-
ings; advising them that there would never be a closed -shop in the respondent's
mine and informing employees that those retained after a lay-off were opposed
to the Unions ; urging employees to consult their foremen before signing union
application cards; proposing- a wage increase as an inducement to an em-
ployee to abandon his union membership ; attending union meetings and offering
a bribe to a union leader to abandon a union:-' (2) teenunated the employment
on or about February 24, 1942, of three named individuals' for the reason that
each of the said employees engaged in concerted activities for the purposes of
collective bargaining and other mutual aid or protection ; ( 3) terminated the
employment of three other named individual' on.or about May 18, 1942 , because
they engaged in concerted activities for the purposes of collective bargaining
and other mutual aid or protection ; (4) on or about June 22, 1942, and at all
times thereafter , refused to bargain collectively 'with the Unions as the exclusive
representatives of its employees,in it unit appropriate for collective bargaining,
although the Unions on or about June 17, 1942 , became and at' all times there-
after have been the duly designated representatives of a majority of the em-
ployees in such unit ; and (5 ) by these acts , interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act. '
On November ] 8, 1942, the respondent filed its motion for extension of date
of hearing On November 19, the respondent filed motions to dismiss and to
make the complaint more definite and certain . By order dated November.19,
1942, the Regional Directpr denied the respondent 's motion for extension of
date of hearing , but did not pass , upou the motions to dismiss and to make the
complaint more definite and certain . In its answer filed November 23, 1942,
the respondent denied that it had engaged in or was engaging in the alleged
unfair labor practices. -
Pursuant to notice, a hearing was held from November 23 to 25, 1942, at May-
field, Kentucky , before Mortimer Riemer, the undersigned Trial Examiner, duly
designated by the Acting Chief Trial Examiner. The Board and the respondent
were represented by counsel , the Hod Carriers by their counsel and business
'Hereafter, when i efeience is made to the Engineers and Hod Carriers , or to joint
action taken by them , both oiganieations will be referred to collectively as the Unions.
2 This latter allegation inns, on motion-of the Roam d ' s counsel, stricken from the
complaint. _
3 Theodore Brooks, Monk Wilson, and Goebel Jackson.
4 Biack Clapp , Lon Lawrence , and Bernice Prince.:
.KENTUCKY TENNESSEE CLAY COMPANY, - 255
agent, and the Engineers by their representative All parties participated in
the hearing Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded the parties.
At the commencement of the hearing, the respondent's motion to dismiss,
previously filed with the Regional Director, was denied The respondent re-
newed its motion to make the complaint more definite and certain, which motion
was granted in part and the undersigned directed the Board's counsel to furnish
the respondent those particulars in conformity to the ruling.
At the conclusion of the Board's case, counsel for the Board moved to dismiss,
without prejudice, the allegations of the complaint as to the discriminatory dis-
charge on February 24. 1942. of Theodore Brooks, Monk Wilson and Goebel
Jackson and the discriminatory lay-otf on May 18, 1942 of Lon Lawrence and
Bernice Prince Both motions were granted over the respondent's objection that
they should have been granted with prejudice At the conclusion of the hearing,
the motion of counsel for the Board to conform the pleadings to the proof as to
matters of form was gi anted without objection Counsel for the respondent made
seveaal motions to dismiss the complaint in ifs entirety or, in the alternative, to
dismiss certain portions thereof The undersigned denied these motions in part
and reserved ruling on the remaining poitaon of such motions All motions are
disposed of as hereinafter indicated. All counsel were afforded an oppol tunity
to argue orally and to file hiiefs with the undersigned None of the parties argued
orally,or filed briefs.
Upon the entire record thus made and from his observation of the witnesses,
the nndersig'aed makes. on addition to the foregoing, the following;
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent. Kentucky Tennessee Clay Company, a Delaware corporation,
operates a clay mine six miles south of tllavheld, Kentucky, where it produces wall
and refractory lire clay ' For the 12 mouths preceding November 17, 1942, the re-
spondent purchased, foi use at its, Mayfield mine, raw materials valued at approx-
imately $19,000, approximately all of which was received from sources outside the
State of Kentucky During the same pea iod the respondent sold products produced
at its Mayfield mine valued in excess of $100,000 approximately all of which were
shipped to destinations on the State of Kentucky The respondent uses the
trade mark "K-T" on its processed clay
For the purpose of this proceeding the respondent stipulated that it was
engaged in interstate commerce.'
At the time of the hearing the respondent employed at its Mayfield mine ap-
proximately Ill employees -
II. THE ORGANIZATIONS INVOLVED
International Union Operating Engineers , Local 181, and International Hod Car-
riers , Building and Common Laborers Union of America, Local 1214, both affiliated
with the American Federation of Labor, are labor organizations admitting to men-'
bership employees ,of the respondent.
O The findings in the paragraphs above of this section ale based upon a stipulation
entered into between counsel for the Board and the respondent.
256 DEICISION,S OF NATIONAL LABOR RELATIONS BOARD
III THE UNFAIR LABOR PRACTICES
A Interference, rests aint, and coei ci,on
1. The events prior to June 3, 1942
,The respondent's employees at Mayfield are engaged in the extraction and
processing of clay They may be divided in the main into three classifications-
"top" men who remove the earth's surface above the clay strata, miners who ex-
tract the clay, and the miscellaneous employees who work around pulverizing
equipment, mechanical equipment, storage sheds, and load the finished products
into freight cars
The miners had indicated an interest in organizing activity in 1940, and on
one occasion in the early summer of,1941 attempted to hold a meeting of the
employees. Interest in organizing was renewed in 1942 when the New York-
Foundation Company commenced the construction with union labor, of a shell
loading plant for National Fireworks, Iue, herein called National, at Viola,
nearby Mayfield. In February 1942, a committee of employees, Brack Clapp,
Goebel Jackson and Norman McCreary, was chosen by the miners to request a
wage increase from the respondent and met with It W. Greene, the respondent's
manager. Greene told the committee that their request would receive his con-
sideration ° No increase however, resulted from the interview.
Sometime in the spring of 1942, Roy Willes, the mine foreman, stated to Clapp,
that: "The Union was getting pretty close," and made some slighting remarks
about unions T
On May 18, 1942, the respondent laid off 14 miners for reasons which are here-
inafter discussed. The same day, Wilkes remarked to Ben Johnson, a miner, in
The prey:nce of other miners: "The Union is getting pretty hot around h -ere. If
anybody brings any Union papers to you all to sign see me before you sign them.
I think now I have got all the men that will join the Union laud off.' The next
day, Wilkes told Weldon McClure: "Bucket,' we are threatened with the Union
in Mayfield, and if a man comes around to you to sign, you ate not to sign until
you, seeime"'0 At or about this time Wilkes was asked by Clayton Nunley, "if
the Union was the reason" for their lay-off Wilkes replied: "They ought to
read between the lines " 13
Lon Lawrence, one of the miners laid off on May 18. was recalled to work
May 25, 1942, on which day he had a conversation with Greene in the latter's
office He testified that Greene asked him if he "was out for a union" and then
Greene stated: "A union would just inn anybody crazy I would be ready to
quit if a union cone here. It would run a fellow crazy." With respect to this
alleged incident Greene testified as follows:
Q Now, do you remember a conversation with Lon Lawrence on or about
the 26th of May, Lon Lawrence?
A. I do.
"This action was evidently taken following the circulation of a petition about February
20, 1942, among all the employees iequesting that the respondent grant a wage increase.
T This finding is based on the testimony of Clapp. Wilkes denied it. Wilkes denied
ever mentioning the Unions at any time to any employees and was not on the whole and
for reaa,)ns hereafter indicated, a credible witness.
This is based upon Johnson's testimony, }vhich was denied by Wilkes.
McClure's nickname.
1" This finding is based on McClure's testimony, denied by Wilkes.,
11 This finding is based on Nunley's testimony likewise denied by Wilkes.
KENTUCKY TENNESSEE CLAY COAIPANY ' 257
Q He testified in substance that he had a conversation with you in your
office at the company. Did you state that you didn't want a Union because
you would have nothing to say and that the Union would run anybody crazy?
A. I heard his testimony. No, I don't recall I said a thing.
Q. Do you recall his coming to your office at all?
A. No.
The undersigned credits the testimony of Lawrence and finds Greene to have
made the statements as testified to by Lawrence.
Brack Clapp, laid off on May 18, 1942, returned to the mine on May 25, to
obtain his social security card. He testified that ,when he attributed his lay-off
to his union activity Green replied, "Damn the Union", and stated that he had
run the.mine for\40 years, and -would quit his job rather than permit a union
to dictate what. he, w.is to do Greene admitted that he exclaimed, "Damn the
Union", when Clapp ascribed the lay-off to his union activities, but denied the
other anti-union remarks attributed to him by Clapp He testified that he was
busy at the moment but explained to Clapp why it was necessary to reduce the
force and that Clapp and the others had been selected for lay-off byWilkes be-
cause they "could best get a position in a defense plant" where the respondent
"understood there was an abundance of temporary work." The undersigned
was not altogether impressed by Clapp's testimony yet its substance finds cor-
roboration in and is consistent with the testimony of Lawrence cited above and
with Greend's annnus towards the Unions as revealed on other occasions. It
may be,. as Greene sought to make clear at the hearing, that his expletive was
made in exasperation and annoyance with Clapp personally. Nevertheless, for
the reason above stated the undersigned credits Clapp's testimony and finds
Greene to have made the remarks on this occasion substantially as testified
,to by, Clapp
Following the return to work about May 26 of most of the men previously laid
off on May 18, Clapp visited the Unions' representatives at Paducah. Thereafter,
the employees decided to hold a meeting to organize a union. The first meeting
was held on" the night of June 2, 1942, at the home of employee Roscoe Hawkins.
Hawkins' home was selected to avoid observation because of its isolated position.
Wilkes was informed by Clayton Nunley that the employees were going to hold
the meeting to organize it union Witnesses estimated that from 65 to 90 em-
ployees attended the meeting
On the night of June 2, Wilkes visited the home of employee Jesse Hopkins
and asked Hopkins it lie was going to attend the meeting. Hopkins told Wilkes
that he was not going to the meeting whereupon, Wilkes asked him if he would
attend and "find out what happened." Hopkins refused to do so"
Thereafter, Wilkes and Robert 0. Wilford employed in the respondent's office;
went to the meeting in Wilkes' car. Wilkes admitted that he went to the meeting
"to see who was there and what they was doing." When they arrived, Wilford
asked what the employees were doing and was informed that the men had come
to the meeting "to try to organize." Wilford told them that he hated to see
the employees do that; that neither the respondent nor the employees wanted
a union; that thus far both the respondent amid the employees had progressed
without a union; that union organizers would "fool" the employees; and that
if any employee was not satisfied Wilford would be glad to listen to him. The
12 Wilkes admitted that he asked Hopkins to attend the meeting.
258 DECISIONS OF'NATIIONAL LABOR RELATIIONS BOARD
foregoing findings with respect` to Wilford's statements are based upon the
•testimony•of Byron-•Webber'and Goeble Legate" I
-Wilkes also spoke to the employees at the meeting. According to Goeble
Legate, Wilkes stated: "Good Evening, boys Boys, I aim sorry but, I don't believe
you boys are doing the right thing. I feel like the company would take care of
you better than outsiders would.", Wilkes admitted that he might have asked
"What are you doing, boys" but denied any other statements and attributed all
the "talking" to Wilford. The undersigned finds Wilkes to have made -the
remarks as testified to by Legate. -
2. The events of June 3, 1942
Following the lileeting, Wilkes returned to the mine and reportediwhat had
taken place to Greene. The next morning. June-3, when employee Howard Heiison
reported for work at about 7:15 he found Green in the litter's' office. Greene
asked Henson if he had attended the meeting. Greene wanted td know the
number of employees present and what they intended to do and if Henson
believed the employees would organize. Henson told Greene the purpose of the
meeting was to organize a union. Greene replied that there ought not to be a
union at the mine and that it could not "help the Bien" for the reason that lie
could not afford to work under a closed-shop "
Immediately thereafter Greene told Wilkes that he wanted to talk to some of
the miners and ordered him to send some of the miners to his office Hawkins was
therefore sent to Greene's office. Greene told Hawkins that lie,had heard about
-the meeting at his home. Hawkins answered that he did not care to discuss It
and Greene remarked that this was "perfectly' all right." Greene added that the
respondent could not afford to,increase wages, asked if the employees would not
prefer to have Greene "taking care" of them rather than pay clues to a union-
and stated to Hawkins that if the employees joined a union they could not bring
their troubles to him, for he would quit
>J Wilford admitted that he stated he could not make as good a speech as a labor organ-
izer , that the respondent could not keep the employees from joining a union ; that the re-
spondent was hatdpressed $nancially rind Gieene could be depended upon "to take care of
them, if they would give him time" ; and lie hoped "they would give serious consideration
before they got us all in a mess " At the hearing, the respondent maintained that Wilford
was not a supervisory employee. Obie Snow characterized Wilford as "one of the head
mien" and he and other Board witnesses testified that Wilford hired employees, gave in-
sti actions to foienien and issued insti actions to employees ' Wilford is Greene's nephew and
has been connected with the respondent of its predecessor in business since 1922 . He is a
stockholder in the respondent corporation and receives a salary of $200 a,month. Wilford
works in the respondent's office doing general office work, makes out pui•chase,orders
and watches over texture of clay, its moisture content and packing In his testimony he
admitted that he has recommended the hiring of employees to foremen ; instructed em-
ployees , assumed responsibility for decisions in the absence of Greene and participated with
Greene and other officials of management in consideration of problems affecting the mine
and its operation. Wilford did not deny the testimony that he has issued instructions to
foremen The undersigned finds Robert 0 Wilford to be a supervisory employee and as
such, the respondent is responsible for his acts. See N. L. R B v. Link-Belt Co., 311
U S. 584 ; Intel national Association of Machinists v N. L, R B., 311 U. S. 72, N. L R B.
v Jahn & Oilier Engraving Company, 123 F. (2d) 589 (C C. A 7).
14 These findings are based on IIenson ' s testimony Greene testified that he regarded
Ilenson as a "truthful man" and one who would not "willingly, wilfully make a misstate-
ment " He testified further that he must have seen Henson in the office that morning
but could net recall any conversation with him
These findings are based on Hawkins' testimony. Greene admitted' calling Hawkins
to his office ; that lie asked Hawkins "what -his difficulty was" ; that Hawkins replied
that due to the rise in cost of living the miners were demanding more money to which
Greene replied that he was thinking of raising the rate for mineis.
KENTUCKY TENNESSEE CLAY COMPANY : 259
Following Hawkins'"return to the mine, the miners decided that what Greene had
to-say to one'coulcl be said to alll. Accordingly,, they left them work and gathered
outside the respondent's office. Wilford was asked to call Greene out to speak
to the assembled employees. Five' employees " testified on behalf of the Board,
in substance, that Greene stated he could see no reason why men wanted to join
a union and pay dues to someone who would dictate to Greene and the employees,
that the respondent was paying 2 cents an hour above the Union scale, and was
hot going to pay any more In addition. Ben Johnson, a credible witness, testified
that Greene remarked that he could look after the employees' welfare "better
than somebody [they] didn't know anything about" Greene admitted at the
hearing that he asked what was "the trouble all about": that in reply to a
request for,a raise he stated the price of the respondent's product was frozen ;
that the respondent's wages, were until recently, above the level in the area but
would be increased 2 cents to reach this level: that the Federal income tax
returns did not reflect the profits accruing to the respondent's stockholders; and
that it was the respondent's policy to listen to individual or collective complaints
and seek their anucable adjustment. He denied to his knowledge any mention or
reference to unions
The undersigned believes that what Greene said on this occasion lies somewhere
between what he admittedly said and what the employees testified he said.
,Greene had previously that morning questioned Henson and Hawkins about the
meeting of June 2 and expressed his interest in the organizing activity of his
employees. He had moreover, as heretofore found, expressed the opinion that
union, affiliation would not help the employees and if the employees joined a union
Greene would not hear their complaints for he would quit. Moreover, the very
circumstances of the meeting, following as it did Wilkes interference with the
employees' rights and his report to Greene, indicates that Greene took advantage
of the occasion to impress upon the employees his opposition to their organizing
activity and union interests The undersigned so finds.
Following Greene's talk to the employees, Wilford asked Byron Webber if
the employees world be "sore"- if Wilford was observed ,talking to Webber
Wilford then asked if Webber thought he "could take 60 cents an hour and stop
the Union?" Webber replied : "If you [Wilford] let me pick one man and you'
pick one man, the three of us will see what we can do " Webber selected Paul
Camp and Wilford asked if "Legate, the deputy", would satisfy Webber. Wilford
finally said lie would consult Greene ,in(] let Webber know `the very best figures
he will give you " Later that day Wilford told Webber that he had not seen
Greene and the incident closed"
On the night of Jude 3, 1942, the eniplmees held their second meeting at the
]ionic of Hawkins At this meeting. attended by the Unions' representatives from
Paducah. -a majority of the respondent's employees affixed their signatures to
nnrrx3ographed application sheets of the Hod Carriers.
3, Further acts of interference because of union membership
In September 1942, employees Paul Camp and Byron Webber filed applica-
tions for positions with National at its defense plant in Viola W. A Rex,
National's personnel manager, thereupon mailed the respondent a form inquiry,
soliciting information concerning the experience, habits, and conduct of the two
employees In Camp's case, Greene in reply to National's inquiry, 2 Why did
applicant leaze your employ, wrote' "Is still working for us, day labor. Was on
"Brack Clapp , Goeble Legate, Ben Johnson Cory Clapp and Clarence Nnnley
17 These findings are based on Webber's uncontradicted and credible testimony.
5.t1647-43-vol 49-18
i a
26O DECISIONS OF NATIONIAL LABOR RELATIONS BOARD
strike,with manyothers,for 2 months,,demanding '40% wage 'increase ." In further
reply to National 's question , 5. Do you know anything which might make appli-
cant an undesirable employee for this connpavy , Greene wrote : "No, except above
answer to No . 2 question ." In Webber ' s case, Greene wrote , in answer to question
2 above:."Has not left our employ EXCEPT that he Signed up with Union, went
out on strike for 8 weeks. Is now working" ; and in reply to question 5 above :
"Was one of the leaders in our labor difficulties " Greene. also added to the
personnel inquiry on Webber : "Strikers demanded 40 %o wage increase and closed
shop. Got neither." 1e When Camp returned to inquire about his application
he was told by Rex that he was a "trouble maker" and National would continue
their investigation of his experience . He was not hired. Greene testified , that in
view of the non-strike policy adopted by the two major national affiliated labor
organizations, "any leader or striker would be an undesirable employee".19
Greene's conduct in this instance reveals his attitude towards the union mem-
bership and activity of the respondent's employees By this conduct, Greene
in effect, warned the employees against continuing their union membership and
participating in concerted activities sanctioned by the Act. The undersigned
finds that the respondent thereby engaged in a violation of the Act. -
Conclusions with respect to interference , restraint , and coercion
The undersigned finds that the respondent by disparaging the Unions, their
leaders and members, advising employees to consult their foremen before joining,
:a union, attending union meetings and urging employees not to organize ; referring
to labor organizers as outsiders; questioning employees about the Unions, their
meetings and the employees -interest therein; offering a wage increase to an
employee as an inducement to abandon his union membership : and by stressing
the undesirability of union members as employees because of such membership
and concerted activities, thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act
B. The disci incinzatoi i/ joy-off of Brack Clapp
The complaint alleged the discriminatory lay-off of Clapp on May 18, 1942.
Clapp is a clay miner and has been in the employ of the respondent or its prede-
cessor for about 18 years. He was admittedly one of the respondent's "best,
diggers " He testified without coiitradiction that on or about May 25, 1942,
Greene told him that he was "about as good" a miner as worked for the respondent
and that with respect to production for 1941, Clapp stood "second best" There
is no evidence of dissatisfaction or cause for complaint concerning Clapp's ability
and conduct as e miner.
19 The undersigned sustained the respondent 's objection to a question concerning
Webber's alleged conveisation with Rex and what Greene had told Rex Thereupon the
Board offered to prove that if Webber were permitted to testity he would testify that
Rex told him that lie [Rex] had received a tepoit fioin Greene "to the effect that he
had been active in Union affairs, and was a trouble maker , and that Mr. Rex told him
[Webber] that on that account lie could not and would not employ him " Webber stated
that was the substance of what his testimony would be The.respondent renewed its
objection and was sustained Thereupon counsel for the Board offered in evidence as
an exlubit the form ingmiy fiom National to the respondent containing Greene's answers
quoted in part above Upon presentation of this document, the undeisigned reversed
his piemions ruling, omeiiuled the'oblection , accepted the offer and admitted the offered
exhibit Webber, however, was not questioned thither about his conversation with Rex.
in The above findings are based on the testimony of Gi_eene, Camp and corroboi ative
doennieutaiy evidence
KE\'1 UCKY TENNESSEE CLAY CIGMIPANY 261
In the summer of 1941, Clapp displayed his interest in orkaiiizing activity-by
attempting with others to hold a union meeting . In February 1942, Clapp was
one of a committee of three chosen by the ininers to seek a wage increase'from
Ureene . Although there i s evidence of the employees ' continuing interest in
organizing between February and May 18 , 1942, the date of the lay-off, there is
no evidence of Clapp 's particular activity in connection therewith during this
latter period Clapp joined the Hod Carriers on June 3, 1942, at the second
meeting held at Hawkins' home.
On May 18, 14 miners , including Clapp, were laid off Wilkes, who notified
the miners of their lay-off, slid not indicate any reason why Clapp in particular
Was among those selected, other than,that it was due to the "facts of the busi-
ness,',"' On May 25, when Clapp returned to the mine"office to obtain his social
security card, lie asked Greene why lie had been laid off in view of his length of
service , ability as a miner , and good production record. Clapp . testified that
Greene made no answer to this inquiry, whereupon Clapp asserted that because
of interest aroused by organizing activity at National, Clapp had been selected
for lay-off because of the respondent 's belief that he "was in favor of organized
labor": possessed an "influence over a bunch of the men in the mine ," and that
by thus selecting Clapp, the respondent hoped to intimidate the rest of the ein-
ployees It was in response to this that Greene admittedly said: "Damn the
Union ." which remark has been credited above.
The respondent presented documentary evidence and oral testimony to justify
the lay-off of 14 miners ," including Clapp, on May, 18, 1942. Late in April 1942,
Royal Bennett , the loading foreman , informed Wilkes , that the respondent 's stor-
age bins housing Kentucky #12 Black Ball and Kentucky Special Ball clays were
fall. Therefore , on May 4 the respondent reduced its work week from 5 to 4
S-hour days . On May 11, a further reduction in the work week to 4 7 -hour days
was made. This latter reduction in hours chid not suffice to reduce the over-
stock in the above -mentioned clays and the respondent therefore decided on
Ilay 18 to lay off 14 miners.
The respondent 's reason for the lay-off of the ininers is persuasive in so far
as indicating a general over-all necessity to reduce its pioduction and acquire
additional storage space for its clays It is not, however, as fully persuasive as
grounds for the selection of Clapp As found heretofore , Clapp was one of the
respondent 's best niineis NNliose qualifications - placed him among the foremost
in the production of clay In selecting hum for lay -off he was passed over in favor
of men with less experience , length of , service and ability. This was a de-
parture from what appears to have been the respondent 's rather general seniocity
policy to retain older men in length of service when other work factors were of
equal importance At the hearing, both Greene and Wilkes testified that those
laid off on May 18 , including Clapp , were selected because in Wilkes' opinion
they were best suited to obtain positions in a nearby defense industry. This
testimony seems hardly credible in view of the respondent's other assertion that
the miners were told the lay-offs were temporary and that they would be re-
2 This finding is based on Clapp's testimony . Wilkes testified that . Clapp was laid off
.ber a.ise he , 'selected the men who could better get jobs elsewheie "
21 The record iefei s to the lay -otf of 15 miners llocunientary eiidence shows the lay-
off of one miner on May 7 nod of 14 on May. 18, 1942.
23In negotiations pith the Unions , which is separately cohsidered ' below in connection
with the allegation that the respondent iefused to bargain , the respondent asserted that
-its policy was to retain olden mew-in length of-service Niheie other factors such as abiliti
and experience could be accorded equal iieiglit
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called to work. A temporary lay-off of a week is hardly consistent with the as-,
serf ion that the laid-off men were selected because of their apparent ability to,
secure jobs in a defense industry , where presumably shortage of labor might result
in fairly permanent employinent.n ,
Although 11 of the miners including Clapp , were reinstated at various dates
between M •iy 26 and September 22, 1942 , thus indicating that lack of storage fa-
cilities prior thereto , i equired a lay-off of some miners , this nevertheless, does
not fully explain the respondent 's reasons for selecting Clapp Nor does it satis-
factorily dispel the evidence of discfimination found in Wilkes' anti-union state-
ments on the very day the miners were laid off, heretofore referred to, particularly
his remarks to Ben Johnson . credited above : "I think now I have got Al the men
that will join the Union laid off"
The undersigned is of the' opinion that the respondent 's production require-
ments and lack of storage space served as a pretext'for the lay -off of Clapp, and
finds that in selecting Clapp for lay-off the respondent was motivated largely by
a desire to discipline an employee who, in its opinion appeared to be the prin-
cipal union influence among the miners, thereby warning the employees to cease
their interest in unions and refrain from union membership and concerted activity
Under the circumstances , the unde rsigned concludes and finds that the respond-
ent laid off Clapp on May 18. 1942 , not because of its production requirements, or
that Clapp appeared best able to secure work elsewhere but because Greene and
Wilkes, its responsible agents , were opposed to his ' leadership of the miners, his
union interest, and activity By thus laying off Clapp the respondent discrim-
inated in regard to his hire and tenure of employment , and thereby dis-
couraged membership in the Unions and interfered with , restrained , and coerced
its employees in the exercise of the iights guaranteed in Section 7 of the Act
C The alleged refusal to baagain collectively
- 1. The appropriate unit
The complaint, alleged that "all production and maintenance employees of the
Respondent at its Graves County, Kentucky- plant,,but excluding clerical and
supervisory employees, constitutes a unit appropriate for the purposes of collec-
tive bargaining . . The respondent in its answer stated "that it is without -
knowledge as to whether" the unit alleged by the complaint is appropriate but
did not offer any testimony to the contrary. ,
All of the respondent's production and maintenance employees are involved
in a continuous integrated process from the removal of top soil and the extrac-
tion of clay, to its final disintegration, packing and shipping The top soil is
removed by power, the operators and laborers involved in the operation receiving
hourly wages of from 48 to 92 cents per hour. The clay is extracted by miners
who are paid from 25 to 61 cents per ton of clay mined. The remaining employees
are hourly paid and employed in the final preparation of clay for shipment, or
in the maintenance of equipment used therefor. The m ineis are under the super-
vision of Roy Wilkes; employees who work in and around the disintegrators and
storage sheds are under supervision of Noble Alexander, loading foreman, and
construction and maintenance men receive orders from Ira Keel. In June 1942,
the respondent employed approximately 105 men, excluding supervisory and
clerical employees, all of whom were eligible to join the Unions.
xa Presumably, it would require more than one week .to secure a position in a war indus-
try•because of the personal investigation made necessary by defense and safety require-
nients.
KENTUCKY TENNESSEE CLAY IGOnZPANY- 263
The undersigned finds that the production and maintenance employees;.but
excluding stipe'ivisors and clerical employees, constituted at all times material
herein, and that they now constitute, a unit appropriate for the purposes of
collective bargaining with respect to wages, rates of pay, hours of employment,
.and other conditions of employment, and that the said unit insures to employees
of the respondent the full benefit of their right to self-organization andto collec-
tive bargaining and otherwise effectuates the policies of the Act.
2 Designation of the Unions by a majority of the employees in the appropriate
unit
Employees in the above unit found appropriate became interested in the Unions
in the spring of 1942. On June 2, 1942, they held their first meeting attended
by between 65 and 90 employees to organize the Unions. On June 3, a substantial
majority of the employees affixed their signatures to- mimeographed application
sheets of the Hod 'Carriers.' On June 17, 1942, the respondent's employees
went out on strike and refused to return to work until the respondent recognized
the Unions as the exclusive bargaining representatives. Thereupon, the re-
spondent's attorney Richard F. Moll, gave to the Unions a statement in writing
iecognizing-"the Hodcarriers.and Common,.Labor.,,Local No., 1214 and Interna-
tional Union of Operating Engineers as the exclusive bargaining agencies for its
production employees". Thereafter, down to and including October 8, 1942, the
respondent and Unions engaged in numerous bargaining conferences at which the
respondent's representatives accepted as a fact the Unions' statement that all
but six employees belonged to the Unions. At the hearing, counsel for the
respondent stated that the respondent "has never raised" the issue of the Unions'
-majority and expressed the opinion that it was not in any position to raise the
issue subsequent to recognition nor did it have any intention "of abating or
impairing in any way the recognition" accorded the Unions on June 17, 1942.
The undersigned finds that on June 17, 1942, and at all times thereafter,
the Unions were the duly designated representatives of a majority of the
employees in the appropriate unit, and that, by virtue of Section 9 (a) of the
Act, they were the exclusive representatives of all of the employees in the
.unit for the purposes of collective bargaining.
3. The alleged refusal to bargain
A. The negotiations
Pursuant to the Unions' request, representatives of the Unions and the
respondent met in their first bargaining conference on June 22, 1942. The
respondent was represented by Greene and its attorneys, J. W. McDonald and
Moll; The Hod Carriers by McCloud and a committee of employees and the
Engineers by Mossberger and employee representatives. The Unions submitted
proposed agreements each containing provisions for a closed-shop. The re-
spondent immediately opposed this provision, requesting that the question be
passed for a discussion of other clauses in the agreements. McCloud, how-
ever, stated : "If there ain't no closed shop, there ain't no 'contract." The
24 This finding is based upon the testimony of Board Witnesses, not disputed by the
respondent, and the mimeographed applications of the Rod Carriers introduced in evidence
which bear the apparently genuine signatures of 84 employees. The respondent did not
"hiect to the admission of this document and offered no evidence that the signatures on
the sheets were not genuine. See N. L. R. B. v Somerset Shoe Co, 111 F. (2d) 681
(C. C. A. 1).
264 'DECISIONS OF NA'T'IONAL LABOR, , RELATIONIS -BOARD
union representatives stated that it would be "wasting time" to discuss other
provisions unless the respondent would agree to a closed-shop.. Nevertheless,
it was agreed that the respondent would formulate a wage proposal in the
nature of a counteroffer and which the respondent agreed would be retroactive to
June 17. The respondent also expressed its readiness to adopt the provisions in
the Unions' agreement 2a pertaining to: (1) replacement of employees in case
of machine break-downs; (2) an 8-hour day and 48-hour week with time and
one-half for work done'beyond 8 hours in one day; (3) bi-monthly wage pay-
ments; and (4) holidays. The respondent opposed the Engineers' provision
providing for arbitration of employee grievances, and offered to submit a
formula for settling grievances at the meeting.
On June 25, after Greene had conferred with the respondent's Board of
Directors, the respondent submitted two identical counterproposals, one to
each of the unions. Therein the respondent' accorded exclusive recognition
to each union, offered -to _increase existing wage scales 10 percent retroactive
to June 22,26 accepted the Unions' proposals respecting hours, holidays, and
,in•other minor respects, rejected they closed-shop, and proposed with respect to
seniority and arbitration that in the event of a lay off, retention of employees
shall "lie with the company" and that disputes between the respondent and the
unions or between the respondent and employees be composed through nego-
tiation and discussion between the respondent, the union or the aggrieved
employee, failing which, the union might at its option on 30 days' notice ter-
minate the agreement.
The Unions rejected the respondent's offer of a 10 percent wage increase as
insufficient. and stated that unless they obtained a closed-shop they "might
as well go home." The respondent would not concede a closed-shop and stated
that business conditions did not permit more than a 10 percent increase in
wages which it was willing to put into effect at once. The Unions also rejected
the respondent's offer to increase wages 10 percent retroactive to April 1, 1942.
Thus at the close of the second conference the parties were in such wide dis-
agreement on issues of the closed-shop and wages that there was little or no
discussion of the other differences between the parties on matters such as
22 The two agreements were substantially alike making due allowance for different
employees sought to be covered under the agreements, in the case of the Engineers ;
machine operators. firemen, oilers, and mechanics, and in the care of the Hod Carriers,
miners, common laborers, and drivels. It seems to have been generally understood by the
parties that where the respondent accepted a provision in one agreement it would accept
or deal similarly with the other union on such matteis as hours, holidays, bi-monthly
payments, etc. -
2° The Hod Carriers had proposed the foi- Comparable existing rates disclosed by the
lowing rates : record were :
Ball clay, 85¢ per 2000 lb ton 610 per 2100 lb. ton
Sagger clay, 500 per 2000 Ib. ton 250 per 2100 lb ton
Waste per car, 35¢ per 2000 lb ton 18¢ per car
General laborers, 700 per hour , 48¢ per hour
The Engineers proposed the following
hourly wage rates :
Crane operator, 850 per hour, 920 per hour
Scoop operator, 85¢ per hour
Drum hoist operator, 75¢ per hour 65¢ per hour
Bulldozer operator, 75¢ per hour
Punip operator, 75¢ per hour _
High lift operator, 75¢ per hour
Drill operator, 75¢ per hour
Welder or mechanic, 750 per hour 48¢ per hour
Diesel machine, 75¢ per hour .
Crusher plant, 75¢ per hour
Fireman and oiler, 750 per hour
KENTUCKY TENVESSEE CLAY COMPANY 265
seniority and arbitration . The outcome of this conference was reported to the
employees ,.who thereupon decided to strike. A picket line was thereafter estab-
lished, the mine closed down , and the employees remained out on strike until'
August 20, 1942 -
On June 27 , W C. Burrows, Kentucky Commissioner of Industrial Relations,
assigned T . B. McConnell to effect settlement of the dispute at the respond-
ent's mine . McConnell conferred with representatives of both the respondent
and the Unions at Mayfield on July 1 and 2, 1942 Thereat , the respondent
submitted its proposed seniority clause." This was rejected and the Unions
stated that - nothing but a closed-shop contract was acceptable . This the re-
spondent would not grant, whereupon the conference concluded.
On July 10, the parties met again on call , of Mossberger of -the Engineers,
the same representatives being present together with a delegation from the
Central Trades and Labor Council of Paducah and R . E. Bailey of the Kentucky
Conciliation Service Mossberger stated the Unions were present to see if
"some kind of settlement " could be reached, and were willing to concede "some
points- that is in, the contract ,- providing that , the Company would- •grant them
the closed shop." Moll stated that the respondent 's position respecting the
closed-shop was not changed ; that it was none of "its business " whether the
employees joined a union or not; and it believed it to be improper to tell the
few non-union employees that "you have got to join the union ," in order to
work at the mine . Thereupon , the Unions stated their willingness to accept
the open-shop clause of the respondent ' s counterproposal provided the respond-
ent would agree to hire all new employees through the Union and to give
the Unions 48 hours in which to supply the new employees , failing in which,
the respondent was free to hire anyone it chose. Moll asserted this proposal
was "but a variation of the closed shop" and there was no point in signing a
contract which the respondent believed to be "open shop and the union con-
siders closed shop." The Unions insisted that the closed -shop was necessary to
protect their membership' and prevent its dilution through the hiring of new
non-union employees.
Discussion thereupon, passed to another issue in conflict , that of an acceptable
seniority clause. The respondent asserted its willingness to accept a provision
which was consistent with its claimed policy, that where all factors such as
ability and knowledge were equal , the respondent would recognize length of
service as the determining factor in selection of men for lay off. Bailey ex-
pressed , the opinion that such provision permitted the respondent to determine
lay-offs without consultation with the Unions and suggested that the seniority
clause provide for departmental seniority ' This suggestion was unacceptable
to the respondent , it contending in the case of the miners , for example, that
the oldest men in point of service were frequently the least efficient miners
and in the final analysis for the respondent to manage its affairs successfully
and efficiently it would have to keep " the best workers on the job." Differences
over wages and arbitration did not play any real part in the discussion at the
conference which ended with the parties still in disagreement on the issues of a
closed-shop and seniority.
"The proposed seniority clause was in the following language:
"In- cases of increase or decrease of forces, discharges, lay-offs, the Company, in its
discretion, will give due regard to such factors as length of service, knowledge, ability,
physical fitness and usefulness to the Company If in the opinion of the Company the
other factors are equal, length of service shall govern "
"This would bieak down the iespondent's operations into three major work classifica-
tions, i. e, miners, common laborers working "on top"'in soil removal, and mechanics and
maintenance employees. -
266 DECISIONS OF NATIONAL LABOR RELATION S BOARD.
The parties returned to 'conference again on July 28 at the request of the
Unions At the outset the -Unions- amended, their original closed-shop clause .to
now provide : "In the case where new employees are required the Company
shall have the right to select such employees from this vicinity, provided :
That the said new employee shall within ten (10) days become a member of
said , local ,,unions. The company shall consult the Steward on employing of
new employees" Previously the Unions had agreed to accept the respondent's
open-shop proposal provided however that all hiring of new employees be done
through the Unions. Moreover, the Unions insisted that non-union members
presently employed would have to join the Unions. All parties reached sub-
stantial agreement on the Unions' proposals pertaining to: (1) replacement of
employees in case of machine breakdowns; (2) length of work day, work week,
and overtime pay; (3) bi-monthly payment of wages; (4) observance of
national holidays and Sundays and payment of overtime for work performed
on those days; and (5) employment of individuals in case of emergencies.
Then the Unions offered the following new seniority clause. "Departmental
seniority will be-observed wherever possible and in case of reduction of force the
last man to be employed shall be the. first to be laid off " The respondent again
asserted that its policy was to follow seniority where it was profitable to'do so.;
that it had retained "old men"' but it could not accept this "rigid rule." The
parties thereupon turned to a discussion of the arbitration clause contained in
the original'agreement submitted by the Engineers. The respondent urged its
criginal objection to the clause, that it could not permit disputes that arose
,over the terms and conditions of a contract to be decided "by a third party, or
stranger you might say to the transaction." Before the conference closed the
Unions indicated their willingness to "concede some on the wages" provided
greement could be reached on the other issues in controversy but the meeting
,adjourned with the parties still in disagreement over a closed-shop, seniority, a
grievance or arbitration procedure and wages, and with the charge leveled by
the Unions that the respondent had failed to bargain and to make any concessions.
In an effort to settle the strike and reach agreement on a contract the parties
met on August 1, with T. B McConnell of the Kentucky Industrial Relations
Commission and J. G. Walsh representing the United States Concilial ion Service.
Moll stated that the principal issue in controversy was the closed-shop to which
the respondent could not agree. Walsh asked if the respondent would accept a
proposal providing for arbitration or establishing a grievance procedure. The
respondent's position was, substantially as in previous conferences, that it and
the Unions were in a better position to adjust disputes than an "outsider," 'and if
the parties could not agree the Unions could terminate the contract thus restoring
their right•to strike. Walsh attempted svithout successrto persuade the respondent,,,,
that it was its duty to reach an agreement that would avoid a strike, and that
arbitration was a just and reasonable method of settling disputes.
The Unions now expressed their willingness to accept "the open shop proposi-
tion" in the respondent's counterproposal, provided the respondent would accept
the Unions' departmental seniority zs and arbitration clauses The respondent
stated that the two clauses submitted on seniority and arbitration were the same
as previously 'discussed and rejected and the respondent's position remained the
same The respondent reoffered its seniority proposal previously submitted on r
"The proposed clause read : "Departmental seniority shall pi evail and ability and ex-
perience shall be taken into consideration in promotion of employees In the event of
reduction in forces the last man employed in the department shall be the first laid off"
The Unions agreed without discussion that any contract signed would contain a no-strike
Manse.
KENTUCKY TEN1NESSEE CLAY COMPANY 267
July 230 Moll admitted that it left all discretion respecting seniority in the
,respondent's hands but asserted that this was as it should be. This was unac-
ceptable to the Unions and the deadlock on seniority remained. The union repre-
sentatives stated that they had nothing else to submit or suggest by way of
seniority and arbitration clauses and yet protect their interests. Moll suggested
that a change' in atmosphere brought about by resumption of operations 'at the
mine might be conducive to further negotiations but the Unions were unwilling
to abandon the strike without a contract. The respondent, however, stated that
it would "continue to bargain . . , and try to negotiate a contract" if the men
returned to work
The Unions did not insist on the exact language of their proposed seniority or
arbitration clauses but asked that their concession with respect to the closed-shop
"should be accompanied with a concession on the part of the Company on the
issue of seniority and grievance procedure." The respondent asserted it was a
"waste of time to meet and rehash the same old issues" and expressed doubt that
a panel of three conciliators, as suggested by Walsh, could accomplish anything.
However,, all."parties accepted- •Walsh's panelu,suggestion. and the conference
concluded 81
In compliance with Dr. Steelman's request the parties met on the morning of
September 3, 1942, before a panel of the United States Conciliation Service. The
union representatives stated the parties were still in disagreement over clauses
respecting a closed-shop or maintenance of membership, wages, arbitration, and
seniority. Mossberger renewed the wage demands of the Engineers 38 McCloud,
for the Hod Carriers, cut its demands,5 cents per ton' for clay mined but re-
peated the previous demand for 70 cents an hour for common laborers. The
Unions renewed their offer to abandon the closed-shop provided the respondent
would accept a satisfactory seniority and arbitration clause. The respondent
withdrew its previous offer of a 10 percent increase in wages but this appears
to have been done in order to permit the respondent to incoiporate, in a single
written document all of its previous offers and concessions.
At the afternoon session the respondent renewed its offer to grant the seniority
clause presented on, July 2 3} This the Unions again rejected. The respondent
informed the panel that the Union's proposed arbitration clause was rejected
and declined to make any counteroffer on this subject or to reveal to the panel
its financial statements but agreed to furnish a schedule of wages paid employees
at its other mines. The Unions undertook to return to the next meeting with
data showing wages paid employees under contract with the Unions in the other
clay mines or comparable industries.
The final conferences in the long history of negotiation were held before another
panel 'of conciliators on October 7 and 8, 1942. The respondent submitted its
second proposed written agreement which provided for : union recognition ; a
30 See footnote 27, supra.
31 On August 12, 1942 , the parties met again in the offices of the respondent's attorneys
to arrange for the loading of several cars of clay to be shipped to the respondent's customers
On August 17, Dr. J. R Steelman, Director of the United States Conciliation Service, wired
all parties urging that work be resumed ininiediately pending settlement of the dispute and
inviting the parties to meet before a special conciliation panel on September 3 in Mayfield.
On August 19, the parties conferred to arrange for the reopening of the plant. As a result
s"of