United Mine Workers, District 50, Local 12824

74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Mine Workers, District 50, Local 12824 and Eagle Manu- facturing Corporation. Case No. 13-CB-354. April 12, 1955 DECISION AND ORDER On January 10, 1955, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (b) (1) (A) of the Act, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in a copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was conunitted. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the 'Trial Examiner. ORDER 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, United Mine Workers, Dis- trict 50, Local 12824, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from restraining or coercing the employees of Eagle Manufacturing Corporation, by using or threatening them with force or violence, or interfering with their ingress and egress to and from work, or in any other manner restraining or coercing the em- ployees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain f rom all such activities, as guaranteed to them by Sec- tion 7 of the Act, except to the extent such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in its business office in Appleton, Wisconsin, copies of the notice attached hereto marked "Appendix A." l Copies of said notice, 1 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order 112 NLRB No. 24. UNITED MINE WORKERS, DISTRICT 50, LOCAL 12824 75, to be furnished by the Regional Director for the Thirteenth Region,. shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices shall not be altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Thirteenth Region signed copies of the notice attached hereto marked "Appendix A" for posting,. Eagle Manufacturing Corporation willing, at said Corporation's plant at Appleton, Wisconsin, in places where notices to employees are cus- tomarily posted. Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed as, provided in paragraph (a) above, be returned forthwith to the Regional Director for such posting. (c) Notify the Regional Director for the Thirteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply therewith. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL MEMBERS OF UNITED MINE WORKERS DISTRICT 50, LOCAL 12824 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that : WE WILL NOT restrain and coerce the employees of Eagle Man- ufacturing Corporation, Appleton, Wisconsin, in the exercise by them of the rights guaranteed to them in Section 7 of the Na- tional Labor Relations Act, by using or threatening them with force or violence, or interfering with their ingress and egress to and from work, or in any other manner restraining or coercing them in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mu- tual aid or protection, and to refrain from any and all such ac- tivities as guaranteed to them by Section 7 of the Act, except to the extent such right may be affected by an agreement requiring 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in a union as authorized in Section 8 (a) (3) of the Act. UNITED MINE WORKERS, DISTRICT 50, LOCAL 12824, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding brought under Section 10 (b) of the Labor Management Rela- tions Act of 1947, 61 Stat. 136 (herein called the Act), was heard in Appleton, Wis- consin, on December 7, 1954, pursuant to due notice to all parties . The complaint, issued on November 17, 1954, by the General Counsel of the National Labor Rela- tions Board 1 based on charges , duly filed and served, alleges that United Mine Workers, District 50, Local 12824, herein called the Respondent or the Union, through its officers and agents , conducted a strike against Eagle Manufacturing Cor- poration, herein called the Company , and in the course thereof has restrained and coerced the employees of the Company in the exercise of the rights guaranteed under section 7 of the Act, in violation of Section 8 (b) (1) (A) thereof. The answer of the Respondent, which is a letter addressed to the Regional Director, de- nies the commission of any unfair labor practices. All parties were present and represented at the hearing, the Respondent by its regional director, and were afforded opportunity to be heard, to examine and cross- examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. At the conclusion of the General Counsel's case the Respondent offered no testi- mony but moved to dismiss the complaint on the grounds that the evidence failed to support the allegations thereof. The motion is now denied. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS ; PREDECESSOR CORPORATIONS OPERATING THE PLANT Arno G. Desens, vice president and general manager, testified that the Company was incorporated under the laws of the State of Wisconsin about September 8, 1954, and since September 15 has been operating the plant located in Appleton, Wisconsin. Desens further stated that from about 1923 to 1941, the plant was operated by the Four-Wheel Drive Auto Company (FWD) where it manufactured and sold farm and public utility line construction and maintenance equipment such as trucks, derricks, and various farm implements . In 1941, FWD acquired the stock in Eagle Manufacturing Company, which owned the plant, and thereafter until 1953 Eagle Manufacturing Company conducted the same operations at the plant as a subsidiary company. Desens became general manager of Eagle Manufacturing Company in 1942 and president in 1947. In September 1953, Eagle Manufacturing Company was dissolved or discontinued as a corporate entity and made a "division" of FWD, with Desens acting as sales manager of the division. This corporate arrangement continued until September 1954, when the Eagle Manufacturing Corporation was formed and acquired the plant, land, and equipment of FWD. Desens testified that Company has and will manufacture and sell substantially the same equipment as previously produced at the plant and will complete sales contracts covering the de- livery of equipment executed between FWD and numerous purchasers . Desens said these orders as well as orders secured by the Company will be, and some have been, completed through its own manufacture and from inventory purchased from FWD. 1 The General Counsel and the staff attorney appearing for him at the hearing are re- ferred to as the General Counsel , and the National Labor Relations Board as the Board. UNITED MINE WORKERS, DISTRICT 50, LOCAL 12824 77 Between September 15 and December 6, 1954, the Company shipped products valued at $53,195.79 to customers located in various States other than the State of Wisconsin and locally sold products valued at $13,178.83. The Company also has orders for equipment, which it has not yet shipped, valued at $30,116.82. Fur- ther, the Company received orders from FWD for the delivery of certain equipment to various customers which have not been completely fulfilled, or where the balance thereof has not been allotted to the customers , which "commitments" amount to $45,668.91, as of December 31, 1954, and to $200,285.96 as to those commitments extending to September 15, 1955. In addition the Company has contract commit- ments with Western Electric Company amounting to $12,535.46. While the Com- pany has not received shipping instructions on the foregoing commitments , Desens stated the places to which shipments were made between September and December 1954 is representative of the localities where these orders will be shipped. In the interval September and December 1954, the Company purchased raw materials valued at $16,691.02, of which $10,638.27, represents purchases from outside the State of Wisconsin. The Company also has outstanding orders for such materials in the amount of $49,714.55, of which $2,899.48 will be shipped to it from places outside the State. The Trial Examiner finds that the Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Mine Workers, District 50, Local 12824, is a labor organization as defined in the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary statement On June 16, 1953 , Eagle Manufacturing Company and the Union executed a col- lective-bargaining agreement effective to July 1 , 1955, covering all hourly paid employees at the plant. When that Company became a division of FWD , in Sep- tember 1953 , the contract was "assigned" to FWD and thereafter continued in effect until about September 15, 1954, at which time FWD gave written notice to the Union that it was terminating the same. Desens said that all production and main- tenance employees of FWD , about 30 as of August 31 according to the union dues' checkoff list, were terminated and there was a short period when there were no workers in this category at the plant . Around September 15, the Company com- menced hiring employees and as of the date of the hearing, December 7, had about 17 production and maintenance workers on its payroll, all of whom had previously been employed by FWD. By letter dated September 22, the Union advised the Company that the mem- bers had unanimously voted authority to the bargaining committee "to take what- ever action they deem necessary to protect their interests" and requested a meeting in regard to the agreement. On September 23, the Company wrote the Union that the contract had been terminated by FWD and suggested that it contact company counsel . The Company concluded by stating that if its counsel met with the Union such act must not be construed as recognizing it as the bargaining agent for its employees. Desens related that picketing commenced at the plant about September 22. Rex Vick, a member of the union bargaining committee, testified that meetings of the membership and the committee were held around September 18 and 19, and at one of the latter meetings Robert Owen , regional director for the Union, announced a picket line would be placed at the plant and picketing commenced about September 27. It is undisputed that from the above date the Union has continuously had pickets at the plant and was engaged in such action as of the date of the hearing. At all times material the individuals named below held the union office opposite their names: Edmund Mullin, field representative Delwin Dorschner, president John Mischler, Chief steward Albert Otto, committee member On September 30, Desens , Attorney Gill, and William Laux , company president, met with representatives of the Union in regard to the contract . Owen suggested that the parties jointly request the Board to rule upon the question of whether the Company was obligated to continue the contract , but Gill declined the sugges- 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion because this was a matter to be determined by the Company . In turn, Gill complained that the pickets were interfering with employees entering and leaving the plant but Owen replied they would not discuss that subject . There is no evidence that the parties were able to resolve their differences and no further meetings were held. B. Acts of restraint and coercion The complaint alleges that on specified dates the Union, through its officers and agents, engaged in certain acts and conduct which restrained and coerced the em- ployees in the exercise of their rights guaranteed under the Act.2 The General Counsel produced five witnesses who testified concerning assaults, threats , and acts of intimidation directed against them. As already stated, the Respondent adduced no evidence at the hearing. Since the testimony of these witnesses was not con- tested, and was not shaken on cross-examination , the Trial Examiner therefore accepts and credits their account of the incidents related by them, respectively. These witnesses , all of whom were members of the Union at least through August 1954, testified as follows: Clate Eaton , derrick assembler, had been employed at the plant for about 11 years and was terminated when FWD ceased operations. Eaton was recalled to work on September 27, and when he reported he saw some men sitting in cars but apparently nothing happened . The next morning as Eaton was walking toward the plant Otto approached him and asked where he was going . Eaton said he was going to work whereupon Otto told him there was a strike on and he was not work- ing. Eaton replied there was no strike as far as he was concerned . Otto, in the presence of Mullin , Mischler, and other pickets, repeated he was not going to work that day When Eaton asked why, Otto grabbed him by the shirt collar and stated, "I wasn't going in there if I knew what was good for me; to get the hell out in the car and to go home." Eaton made no further effort to enter the plant and went home. Eaton worked September 29 and 30 and there is no evidence he experienced any difficulty in entering the plant on these occasions . However, at the conclusion of the shift on the earlier date Eaton related that while riding home with Harold Kluge and Howard Siewert, in Kluge's car, they were followed by pickets , including Dorschner and Mischler , all the way from the plant to Hortonville , a distance of about 13 miles, and at one point the picket's car pulled alongside of them and Mischler called them names . On the latter date Eaton was driving home in his car with Kluge and Siewert and was again followed by pickets including Mullin, Dorschner, and Mischler . Mullin was driving the picket's car and refused to let Eaton pass him and attempted to crowd him off the road. These tactics con- tinued until Eaton reported the acts to a police officer who stopped Mullin and allowed Eaton to proceed on his way. Siewert corroborated Eaton's testimony concerning the car-following incidents. Albert Siewert, machine operator, was employed at the plant for about 13 years, was terminated in August 1954 and, upon application , was recalled to work on September 27. On September 28, Siewert , accompanied by Kluge, drove his car to the plant but when he saw a large group of men in front of the door he did not attempt to enter. Siewert drove around and when he met employees Melvin Hoffman and Wallie Frahm he explained conditions at the plant to them. The group then telephoned Superintendent Latimer who promised them police protection and told them to come to work, which they did. There is no evidence the four men had any trouble in entering the plant. However, later Siewert came out for the purpose of moving his car inside the plant gate and was accosted by Mullin and Wallie Roth Roth called him a vile name and Mullin warned him, "if I kept on going to work, I wouldn't have any head left." Philip Schlude, welder, had been employed at the plant for about 11 years, was terminated by FWD , and employed by the Company on September 23. Schlude reported for work on the morning of September 28, and as he was about to enter the office door he was met by Mullin and a group of some 25 pickets Mullin called Schlude a "scab," announced he would "get" him, and "bumped and pushed" 2At the hearing the General Counsel moved to amend paragraph numbered 6 (f) of the complaint to show 2 additional instances of threats to an employee on the part of the individuals named therein as well as 2 other union agents The motion was granted by the Trial Examiner with the right of the Respondent , at the conclusion of the General Counsel's case, to apply for additional time, if needed , to meet these new allegations. The Respondent made no such request to the Trial Examiner, UNITED MINE WORKERS , DISTRICT 50, LOCAL 12824 79 him from in front of the office door to the sidewalk , a distance of about 10 feet. Schlude thereupon returned to his car and drove away. Later he telephoned the plant, came back and worked the remainder of the day. One morning about 2 weeks later Schlude drove his car to the north gate of the plant but as it was locked it was necessary for him to use the south gate. As Schlude was about to leave, Mischler and an unidentified picket drove up in their cars in an obvious attempt to prevent him from moving his car. Schlude was about to "squeeze through" the cars and as he drove toward the south gate Mischler tried to head him off but Schlude was successful in entering the plant by that gate. Rex Vick, was employed at the plant for about 8 years in an unstated occupa- tion, was apparently laid off in August, and returned to work about October 28. As stated above, Vick was a member of the union committee in September and was present at various committee meetings as well as those for the membership at which strike action was adopted and approved . Vick was with the pickets on the morning of September 28, and heard Otto ask Eaton where he was going. Eaton answered he was going to work whereupon Otto grabbed him and told him he was not working that day. Eaton then left the plant area. Vick also related that as Schlude approached the office door Mullin and Mischler pushed him off the sidewalk into the street . Schlude likewise left the scene . Shortly thereafter police officers arrived and escorted the employees into the plant. Melvin J. Hoffman, shipping clerk, was employed at the plant for about 17 years, was obviously terminated in August 1954, and employed by the Company on Sep- tember 21. On the morning of September 28, Hoffman and Frahm were driving to work when they met Siewert and Kluge who informed them they could not get into the plant. Frahm telephoned Latimer about the matter and the group then proceeded to the plant and apparently had no trouble in entering and going to work. On the morning of September 30, Mullin and Mischler met Hoffman as he was leaving his home and warned him if he continued to work he "would be liable to get hurt." About I week later Hoffman and Frahm were driving home from work and were followed by two cars driven by Mullin and Roth. When Hoffman stopped at Frahm's home to let him out Mullin and Roth parked their cars in such a manner as to prevent him from leaving in a normal way and Hoffman had to drive over the curb and lawn in order to get onto the road. Hoffman occasionally used a company pickup truck and one day in the middle of October he parked the truck at the shipping room door to load and deliver freight. Mullin , who was standing in the driveway, told him if he took it out he "would have to take the consequences ." Hoffman loaded the truck but it was driven by one of the office employees . About the middle of November, Hoffman took some freight to a truck terminal and after unloading, Mullin, Otto, Dorschner, and Mischler approached him and talked back and forth but he paid no attention to them. When he ignored some remark by Otto, Mullin threatened , "never mind, wait, and I will get him in a barroom some night, and I will fix him up so his wife won't recognize him." Concluding Findings From the foregoing evidence the Trial Examiner finds that on or about September 20, 1954, the union membership authorized the bargaining committee to resort to any action against the Company deemed necessary to protect the interest of the Union in regard to its agreement with FWD and thereafter from September 27 to the date of the hearing established and maintained a picket line at the plant. The record plainly discloses that officials and representatives of the Union, in particular Owen, Mullin, Mischler , Otto, and Dorschner , not only directed the picketing against the Company but actively participated therein The Trial Examiner therefore finds the above-named individuals are and were agents of the Union at all times material herein The Trial Examiner further finds on the basis of the undisputed and credible ,evidence detailed above , that the Union through its agents. ( 1) Engaged in physical assaults upon employees of the Company ; ( 2) threatened employees with physical violence if they continued to work; ( 3) interfered with the employees' ingress to the plant; and ( 4) intimidated employees by pursuing and attempting to force their cars off the road and/or attempting to prevent their normal use of streets or highways. Under Section 8 (b) (1) (A ) it is an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of their rights guaranteed in Section 7, and the intent of the proscription as stated by the Board in Miami Copper Company (92 NLRB 322 , 324), is "to eliminate physical violence, intimida- tion, and threats of economic action against employees Where the union's conduct involved violence, threats thereof , or related conduct, or where the union had ob- 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tained or was attempting to obtain economic discrimination against particular em- ployees, we have found such conduct proscribed by Section 8 (b) (1) (A)." By engaging in the acts and conduct found above , the Union thereby committed and is committing unfair labor practices in violation of Section 8 (b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the activities of the Company 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 violated Section 8 (b) (1) (A ) of the Act, it is recommended that it be ordered to cease and desist therefrom , and that it take certain affirmative action designed to effectuate the policies of the Act. The nature and variety of the unfair labor practices committed by the Respondent indicate a general purpose to limit the lawful rights of employees and persuade the Trial Examiner that such practices are potentially related to similar unfair labor practices, the future commission of which may be reasonably anticipated from the Respondent's past course of conduct . The preventive purposes of the Act will be thwarted unless the recommended order is coextensive with the threat . It is therefore recommended that a broad cease and desist order issue against the Respondent. Upon the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Mine Workers, District 50, Local 12824, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Eagle Manufacturing Corporation is engaged in commerce as defined in Section 2 (6) and (7) of the Act. 3. By restraining and coercing the employees of Eagle Manufacturing Corpora- tion in the exercise of their rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] A. D. T. Company,' and International Brotherhood of Electrical Workers, Local 369, AFL, Petitioner. Case No. 9-RC-2328. April 12,1955 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, hearings were held before William C. Wilkerson, hear- ing officer. The hearing officer's rulings made at the hearings are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer, a Kentucky corporation with its principal office in Louisville, Kentucky, is the wholly owned subsidiary of the Amer- ican District Telegraph Company, a New Jersey corporation. The American District Telegraph Company is also the parent of a number of wholly owned subsidiary corporations incorporated in and operat- I Name of Employer appears as amended at the hearing. 112 NLRB No. 25.