Tennessee Consolidated Coal Co.

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tennessee Consolidated Coal Company and United Mine Work- ers of America Grundy Mining Company and United Mine Workers of America. Cases Nos. 10-CA-4523 and 10-CA-4524. May 15, 1961 DECISION AND ORDER On November 28, 1960, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in unfair labor practices in violation of Section 8(a) (2) and (1) of the Act, and rec- ommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents and the Charging Party filed exceptions to the Intermediate Report, and the Charging Party filed a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Interme- diate Report, the exceptions, the brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the additions and modifications noted below. 1. In agreement with the Trial Examiner, we find that the Respond- ents violated Section 8(a) (2) and (1) of the Act. Respondent Con- solidated had a collective-bargaining contract, effective until March 15, 1960, with UMW. The parties negotiated prior to March 15, 1960, but were unable to reach agreement. On March 15, the contract expired, and Consolidated ceased its mining operations. In July 1960, Consolidated formed Respondent Grundy, a wholly owned subsidiary. Harwood, counsel for Consolidated in charge of labor relations, became president of Grundy. Harwood testified that he had heard about Southern Labor Union, herein referred to as Southern, a new union in the area; examined one of its collective, bargaining contracts; and concluded that "we could live under it." According to Harwood, he thereupon telephoned Southern' s counsel, Wilson, who agreed that Southern would locate employees for Grundy. 1Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Rodgers , Leedom, and Fanning]. 'The Respondents except to the Trial Examiner's exclusion , at the hearing, of testimony by Harwood , president of Grundy Mining Company, concerning a telephone conversation in the course of which he hired Gibbs as superintendent. As this testimony was offered subsequent to Gibbs' testimony about the same conversation , it would have been better practice for the Trial Examiner to have permitted its inclusion. However, as this con- versation is not the basis for any unfair labor practice finding, we find that the exclusion of Harwood's version was not prejudicial error. Cf. Liberty Coach Company, Inc., 128 NLRB 160, footnote 7. 131 NLRB No. 80. TENNESSEE CONSOLIDATED COAL COMPANY 537 The record shows that Wilson later called Harwood and advised him that he was sending Cain to locate some men. Cain was an or- ganizer for Southern. Harwood told Willson that Cain was to send the men he located to Grundy so that necessary information could be obtained before they were put on the payroll, and that the men Cain sent would be hired, if qualified. On August 12, subsequent to this telephone conversation with Wilson, Harwood hired Gibbs as super- intendent. Harwood told Gibbs that Cain was trying to locate men, that Gibbs "wars supposed to work" the men sent by Cain, and that a man was "automatically hired" when he signed a Southern card. The record further shows that Cain hired Campbell, who was a Southern member, to locate employees for Grundy. He gave Camp- bell some Southern membership and dues checkoff authorization cards, and told him "to tell the men that when they signed them,, that they was hired, that they could go to work." Cain instructed Campbell to turn the cards in to Gibbs. Thereafter, Campbell, alone or with Fults, who assisted Campbell in finding employees for Grundy, went about the*area and, as Camp- bell testified, informed men that Grundy was opening up "under Southern Labor Union" on Monday, August 15, asked them "did they want to sign the cards and go to-work," and told them "they was get- ting $20.20 a shift." During this time, Campbell and Fults kept Super- intendent Gibbs advised of their operations, and turned the signed cards in to him. At one point, when Campbell ran out of Southern cards, Gibbs supplied him with a sheet of paper for the ,men to sign so they could go on the payroll on Monday, August 15. Campbell testified that Gibbs told him at this time, "whether we was at work, playing, shooting marbles, or what we were doing, we was on the pay- roll; that our money was coming right on in to us." When Campbell ran out of. cards, he advised the men that they could sign up on Mon- day morning, August 15, when work was scheduled to begin. On Monday, Cain, Campbell, and Fults drove out to the Grundy site, where they met Superintendent Gibbs. Upon learning that some men who had not yet signed cards had lost their way en route to the mine location, Cain, Campbell, Fults, and Gibbs went out and found these men and signed them up for Southern, with Cain handing the cards to Gibbs, who secured the signatures and kept the cards. About 18 men presented themselves for work on August 15 and/or 16, all of whom had been told to report by Campbell, and all of whom were paid for the 1 or 2 days they reported, although operations never began due to the mob action of UMW members.3 The Respondents contend that the conduct described above did not constitute a violation of the Act because (1) Campbell did not condi- t See Local 5881, United Mine Workers of America ( Grundy Mining Company), 130 NLRB 1181. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion employment on the execution of Southern cards; and (2) Camp- bell was not their agent but was merely "birddogging," that is, scout- ing for prospective employees. We find no merit in these contentions. We infer and find from the fact that Campbell simultaneously so- licited for hire and for the execution of Southern cards, asking the men whether they wanted to "sign the cards and go to work," that he thereby indicated to the prospective employees that the execution of these cards was a condition of employment. In addition, Gibbs, the superintendent, not only knew of Campbell's conduct but actually participated in securing signatures on Southern cards on the morning that work was scheduled to commence. Further, all the individuals hired by Campbell were compensated by the Respondents for 1 or 2 days on which they appeared for work, even though no work was actually done, thus confirming Campbell's authority to hire. Accord- ingly, we find that Campbell conditioned hire for jobs with the Re- spondents on the execution of Southern cards, and that the Respond- ents participated in,4 adopted, and ratified Campbell's activities, thereby rendering assistance to Southern in violation of Section 8(a) (2) and (1) of the Act. 2. On August 15, 1960, Harwood held a meeting with a number of operators who had been working certain Consolidated mines under lease. The Trial Examiner found that; at this meeting, Harwood stated that certain Government contracts for coal would be available in the area; that Consolidated would assist the operators in obtain- ing the performance bonds needed to bid on these contracts if they would "go over with" Southern; that, if they did not do so, the Respondents would take over the properties themselves; and that Grundy was commencing operations that day "under Southern." The Trial Examiner concluded that Harwood's conduct at this meet- ing constituted unlawful assistance to Southern. We find merit in the Respondents' exceptions to this conclusion. As the conduct in question involved statements by an employer to other employers which were never communicated to any employees, and never effectuated by any action on the part of the Respondents or the operator-lessees, we find 'no violations of the Act under these cir- cumstances.' We shall therefore dismiss those portions of the com- plaint applicable thereto.6 Cf. Alco Products, Inc (Pipe Fitters Local Union No . 392, et al. ), 130 NLRB 663. Member Fanning dissents from this conclusion . In his opinion , the fact that the employees may not have been aware of Respondents' assistance to Southern does not derogate from the unlawful nature of Respondents ' conduct in attempting to induce the operators to sign up with Southern. Member Fanning agrees with the Trial Examiner that an inducement of other employers, supported by a promise of benefit , to sign a con- tract with a particular labor organization constitutes unlawful assistance within the meaning of Section 8(a) (2) of the Act. The Charging Party excepts to the Trial Examiner' s failure to find that the Respond- ents dominated Southern , and contends that they should be ordered to "forever withhold TENNESSEE CONSOLIDATED COAL COMPANY 539 ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Tennessee Con- solidated Coal Company and Grundy Mining Company, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Requiring employees and prospective employees as a condition of employment to execute union membership and dues-checkoff au- thorization cards for Southern Labor Union or any other labor organization. (b) In any like or related manner unlawfully assisting or con- tributing support to the above-named or any other labor organization. (c) In any like or related manner interfering with, restraining, or coercing employees or prospective employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at their offices at Tracy City, Tennessee, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondents' authorized representa- tives, be posted by them immediately upon receipt thereof, in con- spicuous places, and maintained- for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondents violated the Act by conduct other than that found herein to be violative thereof. recognition" of Southern. We find no merit in this exception as the Respondents' conduct fell short of domination within the meaning of the Act. See General Molds and Plastics Corporation, 122 NLRB 182, 185. 7 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." APPENDIX NOTICE TO ALL EMPLOYEES AND PROSPECTIVE EMPLOYEES 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 notify you that : 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT require employees and prospective employees as a condition of employment to execute membership and dues- checkoff authorization cards for Southern Labor Union, or any other labor organization. WE WILL NOT in any like or related manner unlawfully assist or contribute support to the aforementioned or any other labor organization. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of their statutory rights. TENNESSEE CONSOLIDATED COAL COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) GRUNDY MINING COMPANY, Employer. 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 Charges having been filed and served in each of the above-entitled cases, an order consolidating the cases, a complaint and notice of hearing thereon having been issued and served by -the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondents, a hearing in- volving allegations of unfair labor practices in violation of Section 8(a)(1) and (2) of the National Labor Relations Act, as amended, was held in Chattanooga, Ten- nessee, on October 25, 26, and 27, 1960, before the duly designated Trial Examiner. All parties were represented by counsel at the hearing and were afforded full op- portunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Argument was waived. Briefs have been received from all parties. Disposition of the Respondents' motion to dismiss the complaint, upon which ruling was reserved at the hearing, is made by the following findings, conclusions, and recommendations. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Tennessee Consolidated Coal Company is a Delaware corporation with office and place of business at Tracy City, Tennessee, where it is engaged in mining, processing, and selling coal. During the year preceding issuance of the complaint it sold and shipped products valued at more than $100,000 directly to points outside Tennessee. Grundy Mining Company is a wholly owned subsidiary corporation of Consoli- dated, with its office. and place of business also in Tracy City. It is chartered to engage in the business of mining coal. Pursuant to contract, Consolidated has leased to Grundy certain lands for Grundy to perform Consolidated's mining op- erations. In turn, Consolidated has contracted to sell all coal produced by Grundy. On or about August 5, 1960, Consolidated was awarded a contract by the U.S. Navy for the sale of coal to be produced by Grundy and valued at more than TENNESSEE CONSOLIDATED COAL COMPANY 541 $150,000. Said contract requires the shipment of the coal by Grundy directly to points outside Tennessee. Both Respondents concede, and it is found, that they are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED United Mine Workers of America and Southern Labor Union are labor organiza- tions within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and issues For an unfixed period before March 15, 1960, the Respondent Consolidated op- erated a number of mines in Tennessee under contract wth the Charging Union. On that date the contract expired and Consolidated ceased operating. Negotiations looking toward a contract renewal bogged down, counsel for the Respondents claim- ing that the UMW insisted upon the wage scale provided by the National contract which they could not afford. Thereafter the Respondent Grundy was formed, with Consolidated counsel, Judson Harwood, assuming the office of president of the new corporation. The arrangements pursuant to which Grundy was to perform Consolidated's mining operations have been noted in section I, above. Consolidated having failed to come to an agreement with the UMW, Harwood according to his own testimony approached counsel for a local labor organization called the Southern Labor Union concerning a labor supply. The precise nature of this labor organization is not revealed by the record, nor did any representative of it appear on its behalf. Certain events which followed Harwood's initial move to open Consolidated's mines are here in issue. It is General Counsel's claim, denied by the answer, that the Respondents gave unlawful assistance to Southern by: (1) Requiring job applicants to sign Southern authorization and dues checkoff cards before being hired. (2) Threatening use of economic pressure upon operator-lessees of certain mining properties owned by Consolidated if they did not likewise employ Southern members. B. The facts First, as to the issue involving Grundy's own hiring. On August 12, apparently after his approach to Southern's counsel, Harwood telephoned to one Paul Gibbs, hired him as superintendent and told him to be ready to open certain mines on the following Monday, August 15. Harwood also informed Gibbs on this occasion that he would need about 40 men to start operations and that he was to hire and put to work men who would be sent to him by one Cain, organizer for Southern. Furthermore, according to Gibbs' reluctant but credible testimony, Harwood told him that these men whom he would put to work would be Southern members, and that a man "was automatically hired as soon as he signed" a Southern union card. Gibbs' testimony establishes that he, as superintendent, actually hired no one. On August 12, the day Harwood hired Gibbs and instructed him as noted above, organizer Cain hired one Dempsey Campbell, according to the latter's uncontra- dicted testimony, to go to work for Grundy and asked him to find others. Camp- bell agreed. Cain gave him a number of Southern membership application and dues checkoff cards and instructed him to tell men that as soon as they signed such cards "they could go to work." After obtaining signatures upon the cards Campbell was told to turn them over to Gibbs. Campbell thereupon went around the countryside, offered individuals employ- ment and told them that if they signed the cards they could go to work the following Monday. After signing up several men in this manner, Campbell went to see Gibbs at his home, and turned the Southern cards over to him, after informing the superintendent that Cain had given him such instructions. Campbell then said that he had no more cards with him, whereupon Gibbs gave him a sheet of paper and told him to have them place their names on it and they would be put on the payroll the next Monday morning whether they worked or not. On Sunday morning Campbell, in company with Carl Fults whose signature he had obtained and whom he shad hired, reported his progress to Gibbs. The three discussed various other prospects in the area whom they might visit. -It- is undis- 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD puted that they did not discuss the names of any, of the: miners in 'the "pocket"- generally known to be UMW members. Later that day Campbell and Fulls, pursuant to Gibbs' instructions, went to many homes and in substance and effect told several men that if they wanted work Grundy was "opening up under Southern" and if they would sign up they could work. On Monday morning, although it appears that some of these new employees got lost in the mountains trying to find the mine location, a number of them reported for •work near the mine site. Cain, who was there with Campbell and Fults, gave cards to those who had not already signed and after obtaining the signatures turned the cards over to Gibbs. It is undisputed that Gibbs accepted the cards but made no inquiry as to the signers' qualifications as miners. Men who had signed Southern cards, as above described, and who reported either on Monday or Tuesday, August 15 or 16, were placed on Grundy's payroll and paid for these 2 days, although no work was done.' Second, as to the issue concerning pressure upon a number of operator-lessees. Based upon the credible testimony of operators H. Higgins and H. Bryant, the Trial Examiner finds that: (1) On Monday morning, August 15, officials of Consolidated and Grundy called together at Murfreesboro, Tennessee, a number of small mine operators who had been working certain Consolidated properties under lease in the past. These oper- ators, having first been informed of possible TVA orders for coal, were told by Harwood, Grundy's president and counsel for Consolidated, in substance and effect: a. that they would have to "go over with" Southern, and if they would "go along with that union" they could get contracts and Consolidated would "help us out making bond"; b. that if they did not work under Southern Superintendent Gibbs would take over these properties and they could work as foremen; and c. that Grundy was opening that day "under Southern." (2) The operators declined to yield to this pressure. C. Conclusions The foregoing facts, in the opinion of the Trial Examiner, plainly depict a course of conduct by an employer in rendering assistance to a labor organization which has long been held by the Board and the courts to be proscribed by the Act' It is not easy to conceive of more potent assistance than an employer's delegation of his hiring power to a labor organization or its representatives, especially when the facts are as herein described. And while, like General Counsel, the Trial Examiner is unable to find a precedent in Board decisions on the point of putting pressure upon the operator-lessees, he concludes and finds that this conduct also constituted unlawful assistance. As own- ers and lessors of the lands operated by such smaller companies, the Respondents possessed the power to force them to employ Southern members or not to operate. The Trial Examiner therefore concludes and finds, in summary, that by the con- duct above-described the Respondents Consolidated and Grundy interfered with the administration of Southern Labor Union by contributing support to it, and thereby interfered with, restrained, and coerced employees and prospective employees in the exercise of rights guaranteed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in section III, above, occurring in con- nection with their operations as 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 Respondents have engaged in certain unfair labor practices, the Trial Examiner will recommend that they cease and desist therefrom and take affirmative action necessary to effectuate the policies of the Act. 'As described In a companion case (1O-CB-1223) UMW members forcibly prevented the opening of the, Grundy mines on Tuesday, August 16. 2 Although all factors are not identical, for the Board's holding on the principal element of rendering assistance to one of two rival organizations , see Perry Coal Company, et at., 125 NLRB 1236.' KELLY & PICERNE, INC. 543 Upon the basis of 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 of America and Southern Labor Union are labor or- ganizations within the meaning of Section 2(5) of the Act. 2. By contributing support to Southern Labor Union the Respondents have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 3. By interfering with, restraining, and coercing employees and prospective em- ployees in the exercise of rights guaranteed by Section 7 of the Act the Respond- ents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (1) 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.] Kelly & Picerne, Inc. and Providence, Pawtucket and Central Falls Carpenters' District Council a/w United Brotherhood of Carpenters and Joiners of America. Case No. 1-CA-3169. May 15, 1961 DECISION AND ORDER On December 23, 1960, Trial Examiner Max M. Goldman 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 Re- spondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, the exceptions and the brief, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations except as herein modified.' i The Trial Examiner found that the Respondent refused to bargain with the Union on March 21, the date of the first contact made by the Union with Respondent . We do not agree that this was the time the refusal to bargain occurred as, on March 21, the Union merely requested a meeting with Respondent, and the meeting was arranged. We find, however, that on March 24, the date of the first meeting .between Respondent and the Union, and thereafter, for the reasons set forth in the Intermediate Report and found by the Trial Examiner, the Respondent refused to bargain in violation of Section 8(a) (5) of the Act, as amended. 131 NLRB No. 79.