United Mine Workers of America

United Construction Workers, Division of District 50, United Mine Workers of America [The Jeffrey Manufacturing Co.] and Thearon F. Chandler. Case No. 9-CB-370. November 4,. 1958 DECISION AND ORDER On June 30, 1958, Trial Examiner George A. Downing 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 recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief and argument. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the brief and the argument, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations.' THE REMEDY Having found that the Respondent herein has engaged in unfair labor practices violative of Section 8(b) (1) (A) and (2) of the Act, we shall order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Because the Union's conduct in causing the Company to discriminate against the employees discharged on April 30, 1957, goes to the very 1 Like the Trial Examiner, we find no merit in the Respondent Union's defense that the only purpose of its discussions with company representatives on April 26, 1957, and April 30 , 1957, was to negotiate the recall of certain laid-off employees pursuant to the grievance procedure of its collective -bargaining contract with the Company. We believe than the facts recited in the Intermediate Report make it clear that the Respondent's objective was to force members of the Ironworkers then employed by the Company into signing membership applications and checkoff cards for the Respondent . This unlawful objective is further 'shown by the testimony of Blankenberger , the assistant business agent of Local 384 of the Ironworkers , and DTair, field representative of the Respondent, to the effect that even after the discharge of the ironworkers Respondent appeared willing to consent to their reinstatement provided that they sign the required membership appli- cations for the Respondent. . 122 NLRB No. 1. 505395--59-vol. 122-2 1 2 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD, heart of the Act, and because we believe that the Respondent's repeat- ing the commission of this or other related violations in the future may be anticipated by reason of its conduct here, we shall order that it cease and desist from in any manner infringing upon the rights of employees as guaranteed by the Act 2 As it has been found that the Respondent caused the Company to discriminate against employees Emerson Hillman, Johnny Hillman, Earl Hulse, C. C. Duncan, Earl Murray, Louis Frank, Frank Rosen- baum;>and Charles Stapleton in violation of Section 8(a) (3) of the Act, and that the Respondent thereby violated Section 8(b) (2) of the Act, we shall order the Respondent to make them whole for any loss of pay which each may have suffered from April 30, 1957, through the completion of the contract between The Jeffrey Manufacturing Co. and the High Splint Coal Company at High Splint, Kentucky, in accordance with the Board's customary remedial policies.' ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board- hereby orders that the Respondent, United Construc- tion Workers, Division of District 50, United Mine Workers of America, its officers, representatives, agents, successors, and assigns shall : 1. Cease and desist from: (a) Warning and threatening employees of The Jeffrey Manu- facturing Co. that they are required to sign checkoff authorizations and that they are required to become members of the Respondent as a condition to continued employment by the Company. (b) Causing or attempting to cause The Jeffrey Manufacturing Co. to discharge employees unless they sign checkoff authorizations for, and become members of, the Respondent, or to discriminate- in any other manner against its employees in violation of Section 8 (a) (3) of the Act. (c) In any other manner restraining or coercing employees of The Jeffrey Manufacturing Co. in the exercise of the right to self -organiza- tion, 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 mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. 2 N.L.R .B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4). 3 F. W. Woolworth Company, 90 NLRB 289; Chase National Bank, 65 NLRB 827; Crossett Lumber Company, 8 NLRB 440. UNITED CONSTRUCTION WORKERS 3 2. Take the following affirmative action which the Board finds will 'effectuate the policies of the Act: (a) Make whole Emerson Hillman, Johnny Hillman, Earl Hulse, C. C. Duncan, Earl Murray, Louis Frank, Frank Rosenbaum, and Charles Stapleton for any loss of pay each may have suffered as a result of the discrimination against him in accordance with the terms and conditions set forth in the section herein entitled "The Remedy." (b) Post in conspicuous places in the business offices of the Re- spondent Union at Harlan, Kentucky, and, Corbin, Kentucky, and in all other places where notices to members are customarily posted, copies of the notice hereto attached marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof and maintained by the Respondent for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail copies of the said notice marked "Appendix A," to be furnished by the said Regional Director, after such copies have been duly signed by an authorized -representative of the Respondent, to the said Regional Director for posting at the place of business of The Jeffrey Manufacturing Co., if it so agrees. (d) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of this Order, what steps'it has taken to comply therewith. ' In the event that this Order is enforced by a decree of n 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." APPENDIX A NOTICE TO ALL MEMBERS OF UNITED CONSTRUCTION WORKERS DIVISION or DISTRICT 50, UNITED MINE WORKERS OF AMERICA, AND TO ALL EMPLOYEES OF THE JEFFREY MANUFACTURING CO. 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, we hereby notify you that : WE WILL NOT warn and threaten employees of The Jeffrey Manufacturing Co. that they are required to sign checkoff au- thorizations and that they are required to become members of our organization as a condition to continued employment with the Company. WE WILL NOT cause or attempt to cause The Jeffrey Manufactur- ing Co. to discharge employees unless they sign checkoff authori- 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zations and have become members of our organization, or to discriminate in any other manner against its employees in viola- tion of Section 8(a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of The Jeffrey Manufacturing Co. in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL make whole Emerson Hillman, Johnny Hillman, Earl Hulse, C. C. Duncan, Earl Murray, Louis Frank, Frank Rosen- baum, and Charles Stapleton for any loss of pay each may have. suffered as a result of the discrimination against him. UNITED CONSTRUCTION WORKERS, DIVI- SION OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA, 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 National Labor Relations Act,. as amended (61 Stat. 136 ), was, heard in Pineville , Kentucky, on May 6, '1958, pursuant to due notice and with all parties (except the Charging Party) represented' by counsel . The complaint , which was issued on March 28, 1958 , by the General' Counsel of the National Labor Relations Board and .which was based on charges duly filed and served, alleged in substance that Respondent had engaged in unfair labor- practices proscribed by Section 8(b)(1)(A)" and (2) of the Act by (a) warning and threatening employees of The Jeffrey Manufacturing Co. (herein called Jeffrey- and Company ), on or about April 26, 1957, that they would be required to sign checkoff authorizations or become members of Respondent as a condition to con- tinued employment by Jeffrey; and (b) causing and attempting to cause Jeffrey on or about April 30, 1958, to discharge Emerson Hillman, Johnny Hillman, Earl Hulse, C. C. Duncan , Earl Murray, Louis Frank, Frank Rosenbaum, and Charles. Stapleton because of their failure to sign checkoff authorizations or to become members of Respondent. By its answer filed on April 3, 1958, Respondent denied commission of unfair- labor practices as alleged. Upon the entire record in the case, and from my observation of the witnesses, I make the following: . FINDINGS OF FACT 1. JEFFREY'S BUSINESS ; RESPONDENT AS A LABOR ORGANIZATION Jeffrey, an Ohio corporation' with its principal office in Columbus, Ohio, is engaged' in commerce within the meaning of the Act ( i.e., annual extrastate sales exceeding- $ 1,000,000; annual extrastate purchases exceeding $1,000,000). Respondent is a labor organization within the meaning of Section 2 (5) of the Act._ UNITED CONSTRUCTION WORKERS 5 If. THE UNFAIR LABOR PRACTICES Jeffrey is engaged in the manufacture, sale, and installation of mining machinery and equipment. It began in late May 1956, the performance of a contract with the High Splint Coal Company, of High Splint, Kentucky, to which an addition was made in April 1957. Respondent and Jeffrey were parties to a collective-bargaining agreement dated June 14, 1956, which covered "all work performed by [Jeffrey] for the High Splint Coal Company at High Splint, Harlan County, Kentucky." The contract provided for recognition of Respondent as sole bargaining representative of all employees covered thereby, but there was no requirement of union member- ship. There was, however, 'a provision for checkoff of union dues, etc., on authori- zation of an employee. The present proceeding had its origin during the course of the additional work which began on April 23, 1957; it resulted from the fact that Jeffrey, instead of ,recalling UCW members who had done the original work (which was completed around April 5), hired new employees who were members of Ironworkers Local 384 ,of Knoxville, Tennessee.' The additional work was of the same kind and classifica- tion as that originally performed; and Harold Simpson, erection supervisor of .Jeffrey, admitted knowing when the first work was completed that there was to be additional work done on the High Splint job and admitted that his understanding was that the UCW contract covered it. Simpson's knowledge was not, however, shared with Alvin Lynch, a new erection foreman whom Jeffrey brought in to complete the work. Lynch testified that he knew nothing about any contract with UCW, knew nothing about the employees whohad worked on the job previously and made no attempt to find out either from the Company or from Simpson, his superior, and that he did not know whether the former employees were satisfactory or unsatisfactory employees. In fact, Lynch testified that during the course of his connection with Jeffrey it was always his policy to hire AFL men, that he never hired a UCW man, and that when he arrived at High Splint around April 22, he called a Mr. York, business agent of Ironworkers Local 384, in Knoxville, who sent out for employment the eight men named in the complaint. The men reported on April 23, were hired, and worked without incident until Friday, April 26, when Adam Mair, Respondent's field representative, appeared. All pertinent events herein occurred during Mair's visit on that date and on his subsequent visit on Tuesday, April 30,2 when he was accompanied by Grover Duty, Respondent's regional director, and Walsh Hall, field representative of United Mine Workers in that territory. Though there were puzzling conflicts and inconsistencies in the testimony as to what occurred during those visits, they concerned mainly matters which are not material to decision of the legal issues herein . Indeed, questions concerning the violation of Section -8(b) (1),(A) were effectually settled by Respondent's stipulation that on April 26, Mair told the eight employees that they had to sign UCW cards authorizing Jeffrey to deduct or check off their wages and initiation fees, monthly dues, and assessments payable to Respondent and become members of Respondent as :a condition of continuing employment by Jeffrey on the High Splint project. Re- spondent's counsel conceded in oral argument that by that stipulation, "I have more or less said that there [were] threats of restraint to have [the employees] join our Union at that time." Credited testimony by witnesses for the General Counsel confirm the fact of Mair's coercive statements. We turn, then, to the issues under the Section 8(b) (2) allegation , on which there was sharp dispute. Though testimony by Simpson, Lynch, and Mair established that at least on April 26, Mair also informed Simpson and Lynch that the employees would have to sign UCW membership and checkoff cards in order to continue working on the job, that fact would not make out a case that Respondent caused or attempted to cause Jeffrey to discharge the men. The single crucial fact which is in dispute under the evidence is whether Duty and/or Mair made the statement to Simpson and Lynch on the 30th that if the employees continued to work without signing the UCW cards, the Union 1 Though there were no seniority provisions in the contract and none as to recall of laid-off employees, there was a grievance clause directed toward settlement of differences regarding wages, working rules, conditions of employment, or any other local differences of any kind. 2 The testimony of Mair and Duty is accepted as to the dates and times of :their visits since they were more positive on those points than were Simpson and Lynch. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have "to strike the mine," as Simpson testified, or would "close up this hollow,"' as Lynch testified. Respondent offered the testimony of Duty and Mair in'refutation, but did not call. Hall, who was present during the conference. However, Mair testified that his only participation was to introduce Duty and Hall to Simpson, and that he then walked. away and remained out of earshot until the conference ended by Simpson calling to Lynch a direction,to pay off the employees on the job. Duty partially corroborated. Mair's testimony, testifying that Mair walked away after making the introduction, though at another point he testified that Mair was standing "around close some place." In any case, whatever Mair's position was in relation to the group, his testimony constituted a disclaimer that he heard the conversation which occurred. In. this situation we have, then, Duty's denials against the testimony of Simpson and Lynch, plus the fact that Respondent did not call Hall to support Duty's testi- mony. Further than that, Hall's presence and participation in the conference was a most significant fact which, in and of itself, tended to corroborate the testimony of Simpson and Lynch •that threats were made to close down the mines. For absent some reasonable explanation, there appeared to be no logical reason for his presence save to serve as visible means of implementation of those threats, since he was the official representative of United Mine Workers, some of whose members were then at work in the mine. But neither Duty nor Mair offered any reasonable explanation,. suggesting only that their meeting with Hall was a mere matter of happenstance and that Hall "just went along for the ride." Such an explanation was plainly dis- credited by the fact that Hall was admittedly present during the course of the con- ference and that it was Mair, not Hall, who stood aloof from it. The entire circumstances thus impel the crediting of the Simpson-Lynch testimony,- over the unsupported denials of Duty, that threats were made to close down the mine unless the employees signed the UCW membership and checkoff cards. It is so found. The coercive effect of such threats was obvious, since Jeffrey was attempting to. complete the particular phase of installation within a time limit of a few days. Indeed, Simpson testified, without denial, that he had remarked to Mair that, "we would do anything to keep this installation going," and Lynch testified that he sug- gested the solution (rejected both by Mair and the employees) of getting the Com- pany to pay the union dues if the employees would sign the application blanks. It was in that setting and pursuant to the threats to close the mine, Simpson and Lynch testified, that Simpson ordered Lynch to discharge the eight employees. Though the foregoing findings cover all matters which are crucial to the allegations. of unfair labor practices, they do not cover other facets of the evidence on which Respondent relies and which will be referred to only briefly since they do not con- stitute a legal defense. Thus, Respondent argued that the Company's intentions and actions were not in good faith, that Duty's only concern on the 30th was to procure the return of the former employees, that he was there by virtue of the grievance clause in the contract, and that the discussion of the grievance led to the Company's. voluntary decision to discharge the eight Ironworkers and to recall the former (UCW) employees. It is true that both Mair (on the 26th) and Duty (on the 30th) contended that the Company should have recalled the former employees to complete the contract, but the evidence showed further that they stood ready at all times to permit the Iron- worker members to continue working if only they would sign membership applica- tions and checkoff cards for UCW. Their claim of reliance on the Company's representations that it did not know the whereabouts of the former employees was as. specious as those representations, for the evidence showed that it was as a direct result of contacts by Duty and Hall immediately after the discharges that at least four of the former employees reported for rehiring. Aside from the foregoing and even were Respondent's contentions otherwise accepted, its defenses would fall, because the finding previously made as to the threats to strike the mine negate Respondent's claim that Jeffrey's action in accepting the grievance and discharging the Ironworkers was a voluntary one. Questions concerning Jeffrey's good faith or good intentions are here immaterial,. since neither by contract nor by law was Respondent entitled to require either recall of the former employees or that the new ones become its members as a condition of employment. Not only is the legality of the termination of the former employees not before us, but there is here no claim of an unfair labor practice on Jeffrey's part either in laying them off or in failing to recall them. As to the hiring of the new employees, the contract vested in Jeffrey, exclusively, the right to hire. It is also to be noted that even if the contract had contained a valid union-security clause, mem- WASHINGTON COCA-COLA BOTTLING WORKS, INC. 7 bership could not have been required of the new employees as a condition of employ- ment .•until, 30 days following their hiring on April 23. If is idle, of course, to speculate what bearing good-faith considerations might have had on unfair labor practice char*es against the Company. None are before us. Respondent was not, of course, entitled to take into its own hands the remedying of assumed unfair labor practices or other injustices by the Company, or more precisely, it. was not entitled to do so by engaging in conduct of its own which constituted an unfair labor practice. It is therefore concluded and found on the entire evidence that Respondent on April 26 warned and threatened employees of Jeffrey that they would be required to sign checkoff authorizations and become members of Respondent as a condition to continued employment by Jeffrey, and that on April 30 Respondent caused and attempted. to cause Jeffrey to discharge Emerson Hillman, Johnny Hillman, Earl Hulse, C. C. Duncan,. Earl Murray, Louis Frank, Frank Rosenbaum, and Charles Stapleton because of their failure to sign checkoff authorizations and to become members of Respondent. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. By warning and threatening employees of Jeffrey on April 26 that they would be required to sign checkoff authorizations and become members of Respondent as a condition to continued employment by Jeffrey, Respondent restrained and coerced employees in the exercise of the rights guaranteed in Section 7, thereby engaging in unfair labor practices proscribed by Section 8(b) (1) (A) of the Act. 3. By causing and attempting to cause Jeffrey on April 30 to discharge said em- ployees because of their failure to sign checkoff authorizations and to become members of Respondent, Respondent caused and attempted to cause Jeffrey to discriminate against said employees in violation of Section .8(a) (3), thereby en- gaging in unfair labor practices proscribed by Section 8(b)(2) and (i)(A) of the Act. 4. The activities of Respondent as set forth in section II, above, having occurred in connection with the operation of Jeffrey' s business as set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic and commerce among the several States and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. [Recommendations omitted from publication.] Washington Coca-Cola Bottling Works, Inc. and Brewery and Beverage Drivers and Workers, Local No. 67, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.' Case No. 5-CA-688. November 5,1968 SUPPLEMENTAL DECISION AND AMENDED ORDER On April 16, 1957, the Board issued its Decision and Order in this case, in which it found, as did the Trial Examiner, that the Respond- 1 The Board having been notified by the API-CIO that It deems the Teamsters' cer- tificate of affiliation revoked by convention action, the identification of the Charging Party is hereby amended. 122 NLRB No. 5.