United Steelworkers and Local 586

UNITED STEELWORKERS AND LOCAL 586 United Steelworkers of America, AFL-CIO and its Local Union No. 586, United Steelworkers of America, AFL-CIO and Inspiration Consolidated Copper Co., and Frank D . Burgess. Case 28-CB-431 January 22, 1969 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On July 2, 1968, Trial Examiner Howard Myers issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed exceptions to the Trial Examiner's Decision and the Respondents filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board 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. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein.' 1. The Trial Examiner found, and we agree, that the Respondents violated Section 8(b)(1)(A) of the Act by refusing to grant Frank D. Burgess a pass to work during the strike; threatening him with violence in order to prevent him from working; and maintaining picket lines and intimidating Burgess by blocking his ingress to Employer's premises. Contrary to the Respondents' contention, Burgess was not required to continue his efforts to cross the picket line until the consequences became quite obvious and therefore, discretion would be the better part of valor. The risking of life and limb is not a condition precedent to finding a violation in such circumstances. Clearly, the presence of the pickets and their statements to Burgess, in the circumstances herein including the Respondent's disenchantment with Burgess and their refusal to grant him a pass, support the Trial Examiner's finding that Burgess 'The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner' s resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect We find no such basis for disturbing the Trial Examiner's credibility findings in this case Standard Dry Wall Products Inc., 91 NLRB 544 , enfd 188 F 2d 362 (C.A. 3) 189 was unlawfully intimidated in his attempts to cross the picket line to get to work. 2. The Trial Examiner also found, and we agree, that the Respondents violated Section 8(b)(2) by attempting to cause the Employer to discharge, layoff, and otherwise discriminate against Frank D. Burgess in violation of Section 8(aX3) of the Act. However, we arrive at this conclusion solely for the reasons stated herein. The complaint alleged that the Respondents discriminatorily refused to issue a pass to Frank D. Burgess permitting him to cross the Respondents' picket line for the purpose of attending work at the Employer's Kiser-Pringle Pump Station, a facility that continued to operate during the strike as a result of a mutual agreement between Respondents and the Employer; that commencing on or about August 9, 1967, persons or individuals patrolling the Employer's premises at Inspiration, Arizona, in behalf of Respondents, refused to permit Burgess to pass through their picket lines without a written pass from the Respondents authorizing such ingress to and egress from the Employer's premises; and that Respondents' conduct was an attempt to discriminate against Burgess because he was not a member of Respondents' labor organizations. As more fully set forth by the Trial Examiner, Burgess had been a member of Miami Local No. 586, Respondents' predecessor, but had withdrawn his membership in 1964 or 1965. On May 30, 1967, Burgess executed an authorization entitled "Assignment" that was tantamount to an application for membership in the Union. At the next meeting of the Union's executive board in early June 1967, Burgess' application for membership was tabled because, in the view of president Robert Barcon, the executive board did not want Burgess to know that it was eager to have him in as a member. All attempts to move Burgess' admission to the Union at subsequent general membership meetings failed to carry. Thereafter, Burgess withdrew his application for membership. When the nationwide strike against the copper industry was called on July 15, the Employer and the Respondents agreed to operate certain facilities, including the Kiser-Pringle pump stations. The Employer also agreed to furnish a work schedule to the Respondents containing the names of individuals who would be permitted to work during the strike, including pump station personnel. Burgess was scheduled to work from 4 p.m. to midnight on July 15, at the Kiser station. Barcon called MacDonald, the Employer's director of industrial relations, on July 15 or 16, and requested that Burgess be taken off the job because he was not a member of the Union. When MacDonald refused to remove Burgess because he was part of the scheduled work crew, Barcon stated he was not satisfied with the answer and that he would discuss the matter with International staff representative Schnaittacher. Schnaittacher called 174 NLRB No. 34 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MacDonald a day or two later and informed him that Burgess should come off the schedule because he did not belong to the Union. After MacDonald reiterated the Employer's position, Schnaittacher stated that the Union could not be responsible for anything that may happen to Burgess. Schnaittacher also stated that the Union objected to Burgess' conduct in avoiding the picket line at the main entrance of the pump station on July 16, by using a private road and walking to the pump station. On the first and second day of the strike Burgess called MacDonald and said he was unable to get in because of the large picket line at the pump station. Burgess called again on the third day and asked permission to take his 3 weeks vacation because, in his view, he was not permitted to work and perhaps the strike would be over when he returned. Although Burgess was scheduled to return on August 9, he did not return to work until October 4. Burgess called MacDonald on the 11th of August and said he was unable to get into the plant because of picket lines, and he asked that his name be taken off the schedule because he did not want the Employer.to continue to double the shifts of certain employees as it was not fair to the Employer. MacDonald credibly testified that there were no pickets at the pump station during the period of Burgess' vacation, but that the pickets appeared for 3 days following the date of his scheduled return from vacation. Significantly, MacDonald observed no more pickets at the Kiser pump station following Burgess' request to be removed from the work schedule. Burgess testified that he called the Union hall on August 9, the day he was scheduled to return to work, and asked Barcon for a work pass because everyone else had one, but Barcon replied that he had nothing to do with the case. Thereafter, Burgess spoke to Schnaittacher and he stated that he couldn't give Burgess a pass. Schnaittacher also informed Burgess that he would not be responsible for him if he went through the picket line. On August 9, Burgess drove to the plant approximately an hour before he was scheduled to work, but drove away after parking and looking at the approximately 10 pickets at the main entrance. The next evening, August 10, Burgess, his son, and a neighbor drove to the pump station entrance but were unable to go through the cattle guard, and entrance 8 feet wide, where five pickets were stationed. Burgess parked the vehicle and walked over to ask the pickets if he could go through. A picket informed him that he would have to have a pass, and that individuals without a pass would not get through. Following Burgess' return home because he couldn't get through the picket line, he called the Employer and asked to be taken off the work schedule. The record indicates that there was no picket line at the Pringle pump station, although one was established at the Kiser station where Burgess worked, that the picketing was discontinued while Burgess was on vacation and started up again upon his return, and that Schnaittacher, in a conversation with MacDonald, stated that the Union was having a peaceful strike and that Burgess was creating problems. In agreeing with the Trial Examiner's finding, we emphasize that Barcon, in a telephone conversation with MacDonald, requested that Burgess be taken off the job because he was not a member of the Union; that Schnaittacher also made a similar request to MacDonald a day or two later; that Schnaittacher refused to give Burgess a pass and informed him that he would not be responsible for him if he went through the picket line; and that Burgess was unsuccessful in his attempt to cross the picket line and was informed by a picket that individuals without a pass would not get through. In view of the foregoing, it is clear that at a time when all of the other scheduled employees at the Kiser facility were granted passes during the strike, that Burgess was denied such a pass because he was not a member of the Union. We are convinced that Barcon and Schnaittacher's requests to MacDonald to have Burgess removed from the work schedule because of his lack of Union membership, was tantamount to a request to discriminate. We find, accordingly, that Barcon and Schnaittacher attempted to cause MacDonald to discriminate with regard to the terms and conditions of Burgess' employment. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondents, United Steelworkers of America, AFL-CIO, and its Local Union No. 586, .United Steelworkers of America, AFL-CIO, their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HOWARD MYERS, Trial Examiner: This proceeding, with the General Counsel of the National Labor Relations Board (herein, respectively, called the General Counsel' and the Board), United Steelworkers of America, AFL-CIO (herein called the International), and its Local Union No. 586 (herein called Local 586)2 being represented by counsel, came on to be heard before the duly designated Trial Examiner, at Globe, Arizona, on April 9, 1968, upon a complaint, dated November 28, 1967, and issued that day by the General Counsel, for and on behalf of the Board, through the Regional Director of Region 28 (Albuquerque, New Mexico), and Respondents' answer duly filed on December 18, 1967. This term specifically includes counsel for the General Counsel appearing at the hearing. 'Conjointly the International and Local 586 are referred to herein as Respondents or as the Union. UNITED STEELWORKERS AND LOCAL 586 The complaint, as amended at the hearing, based upon a charge duly filed on August 31, 1967, by Frank D. Burgess, alleged that Respondents, and each of them, violated Section 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act, as amended from time to time, herein called the Act ' 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 EMPLOYER'S BUSINESS OPERATIONS Inspiration Consolidated Copper Company is, and during all times material has been, a Maine corporation, with authority to do business in the State of Arizona. At all times material, the Employer has maintained its principal offices and place of business at Inspiration, Arizona, where it has been engaged in, and is engaging in, the mining and milling of copper ore.' During the 12-month period immediately preceding the issuance of the complaint herein, the Employer's out-of-State purchases of equipment, supplies, and related goods and materials exceeded $50,000 in value. During the aforesaid period, the Employer's out-of-State shipments of mined and milled copper exceeded $50,000 in value. Upon the basis of the foregoing facts, the Trial Examiner finds, in line with established Board authority, that the Employer is, and at all times material has been, engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that its business operations meet the standards fixed by the Board for the assertion of jurisdiction. II. THE LABOR ORGANIZATIONS INVOLVED The International and Local 586 are labor organizations admitting to membership employees of the Employer. III. THE UNFAIR LABOR PRACTICES A. Prefatory Statement For many years the Employer and the International Union of Mine, Mill and Smelter Workers for itself and 3Specifically, with respect to the unfair labor practices, the complaint, as amended at the hearing, alleged, in substance, that during an economic strike against Inspiration Consolidated Copper Company (herein called the Employer), Respondents violated the above referred to sections of the Act by (1) discriminatorily refusing to issue a written pass for the purposes of attending work to Frank D. Burgess, the Charging Party, because he was not a member of the Union, (2) not permitting Burgess to cross the union's picket line without such a pass , and (3) causing or attemting to cause the Employer to unlawfully discriminate against Burgess in employment because Burgess was not a member of the Union - 4Including the briefs filed by the General Counsel and by Respondents' counsel on June 3, 1968, which briefs have been carefully considered. Under date of May 13, 1968, the General Counsel filed with the Trial Examiner a motion, together with proof of service of copies thereof upon the other parties, to correct certain inaccuracies appearing in the stenographic transcript of the hearing . The motion is hereby granted and the motion papers are recieved in evidence as TX Exh 1. 'The employees of the Inspiration, Arizona, facilities are the only bnes here involved 191 on behalf of Miami Miners Union, Local 586, have had collective-bargaining agreements covering the employees in the units designated in the various Board's Decisions and Certifications of Representatives issued, as of October 19, 1942, January 9, 1943, April 4, 1957, and June 12, 1961. The latest collective-bargaining agreement between the Employer and the above-mentioned labor organizations covered the period from October 15, 1964 until June 30, 1967.6 On July 1, International Union of Mine, Mill and Smelter Workers merged into United Steelworkers of America, AFL-CIO, and simultaneously Miami Miners Union Local No. 586 merged into Local 586 of the United Steelworkers' On July 15, Respondents and six other labor organizations called a nationwide strike against the copper industry, at which time picket lines were established at the mines and plants of the employers involved, including those of the Employer.' When the strike referred to immediately above became inevitable, Respondents and certain other labor organizations involved in the strike agreed orally with the Employer that they would maintain men at the underground operations of the Employer's Christmas, Arizona, mining and milling facilities. Respondents and the other labor organizations striking the Employer also agreed orally to maintain men at the Employer's Inspiration, Arizona, Kiser-Pringle pump station (herein called pump station) in order to provide for continued functioning of the Inspiration mining and milling operations.' In turn, the Employer agreed orally to supply the unions involved with the work schedules of the men to be used during the strike in the aforesaid operations.'° Pursuant to the aforesaid oral agreements the Employer furnished Respondents and to the other striking labor organizations involved with schedules of those who were to work during the strike. All changes in the schedules were also submitted to the labor organizations involved, including the schedules of those employed at the pump station When the strike began on July 15, the seven striking labor organizations established a joint picket line at the main entrance of the Employer's Inspiration, Arizona, premises, which entrance is located on J.S. Highway 60-70. B. The Pertinent Facts Frank D. Burgess, the Charging Party, has been in the Employer's employ since 1948. For the past 16 years he had been working at the pump station. In 1961 or in 1962, Burgess became a member of Miami Local No. 586 and for a time was one of its shop 'All dates hereinafter mentioned refer to 1967, unless otherwise noted ''The record is silent as to whether Respondents formally adopted, succeeded to, or were bound by the aforementioned 1964-67 agreement on and after June 30 However, the record does disclose that the Employer bargained with Respondents as the collective-bargaining representative of the employees covered by said agreement until the commencement of the strike on July 15 'The strike ended on March 26, 1968 'Said pump station provides electrical power and water to the Inspiration facilities, including the fire safeguard equipment, the domestic water requirements of the surrounding area, and the homes of the employees "Similar arrangements for the operation of these facilities had been made during past work stoppages. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stewards. In 1964 or 1965 he withdrew his membership from said organization." Under date of May 30, 1967, Burgess executed an authorization directed to the Employer bearing the legend: Authorization for Checkoff of Union Membership Dues, Initiation Fees, and Uniform Assessments The first paragraph of the authorization reads: I hereby assign to Local Union No. 586, International Union of Mine, Mill and Smelter Workers, Miami, Arizona, and authorize and direct you to deduct from my wages such amounts as the Financial Secretary of said Union may certify to you in writing from time to time as due and owing by me for regular monthly membership dues, initiation fees and uniform assessments, and to remit the amounts so deducted to the Financial Secretary of the Union...." The aforesaid authorization, which, incidentally, is headed "Assignment," and bears the signature of Ladislo Garcia, a then union steward, as witness, was submitted to the Union's executive board for its approval in the forepart of June by either Garcia or by some other union member.': At the first executive board meeting after the Burgess authorization had been submitted for approval, which meeting was chaired by the local's president, Robert Barcon, the board decided to table Burgess' request for readmission into Miami Local No 586, "because," to quote Barcon's testimony, "[we] didn't want Frank [Burgess] to know we were anxious to have him in as a member.. ."" At the meeting of the local's general membership' which immeidately followed the conclusion of the meeting of the executive board, referred to immediately above, the membership was informed that the executive board had taken no affirmative action with respect to Burgess' application for readmission to the Union, but had decided to table consideration of the matter. The membership then voted to table Burgess' application. "The record establishes, and the undersigned finds, that Respondents and/or their predecessors have been the collective-bargaining representatives for the Employer' s employees here involved since about October 19, 1942. "The State of Arizona has a statute commonly referred to as a "Right to Work Law" In those States having such a statute , a union member executes a "wage assignment " authorization instead of the customary "check off" authorization if said person wants his employer to check off his union membership dues Apparently, the submission of a "wage assignment" authorization executed by a unit employee to the executive board of the International Mine, Mill and Smelter Workers, Miami Local No. 586 , was tantamount to applying for membership therein "The record discloses that the same members of the executive board were piqued at Burgess' withdrawal from Miami Local 586 in 1964 or in 1965 Barcon stated in his undated written statement given to a Board agent, "Burgess voluntarily withdrew from the Union during an escape period He got mad about an attempt to change the rules concerning the working schedule of a particular crew." "The procedure followed by Miami Local No 586 with respect to an application for membership therein was The executive board would consider the application at its first meeting following the submission of the appliation, then the board would announce to the membership at the general membership meeting which immediately followed the conclusion of the executive board's meeting, what the board's recommendation was with respect to the applicant's request for membership, and then the membership would, at said meeting or at some subsequent meeting, pass upon the application At the next regular membership meeting, which took place about a week later, a member moved, and the motion was seconded by another member, that Burgess be admitted to the local. During the course of the discussion which then ensued, "Some officers or members," according to the aforementioned Barcon's prehearing undated written statement, "said we should make him [Burgess] sweat a little more, so the member withdrew his motion [to admit Burgess into Miami Local No. 586] and the second was [also] withdrawn." After the close of the above referred to meeting Garcia, the person who had submitted Burgess' "wages assignment," or some other member, told Barcon that Burgess desired to withdraw his authorization Thereupon said authorization was torn up. A day or two before the strike commenced, the Employer furnished the striking unions the work schedules of those who were to do maintenance work during the strike, including the work schedules of the pump station personnel. These lists disclosed that Burgess was to work from 4 p.m. to midnight on July 15. On the day the strike commenced or the following day, Barcon, who was then president of Steelworkers Local 586, telephoned Duncan MacDonald, the Employer's director of industrial relations, and asked that Burgess be taken off the job because he was not a Union member. MacDonald refused Barcon's request on the ground that Burgess was a part of the regular pump station work crew and his name was on the work schedule previously submitted to the striking labor organizations. Barcon, after indicating his dissatisfaction with MacDonald's decision, stated that he would take the matter up with Sylvan Schnaittacher, a United Steelworkers staff representative, and that MacDonald would hear from Schnaittacher. When Burgess passed through the main entrance, located on U.S. Highway 60-70, at about 2:30 p.m. on July 15, en route to his job at the pump station,15 there were no Union pickets stationed there. However, at about 6 o'clock that evening, Burgess had an occasion to drive a company truck near the aforementioned entrance, at which time he saw about four men sitting in the driveway of said entrance near a sign bearing the legend, "586 Local."16 When Burgess returned about 10 minutes later, the men and signs were still there. In fact, pickets were still at the said entrance when Burgess passed through at the conclusion of his shift that night. The next day, July 16, Burgess was scheduled to again work the 2:30-10 30 p.m. shift. Instead of proceeding to the pump station through the main entrance, as was Burgess' custom, he had his son drive him to a private road, referred to in the record as the country club road '17 and then walked to his appointed work area. At the end of his shift that night, Burgess left the plant via said private road. Neither going to nor upon leaving work did Burgess see any Union pickets. In fact, Burgess' purpose in using this unusual route to go to and to leave work was to avoid the possibility of encountering any Union pickets. On July 16 or 17, Schnaittacher telephoned MacDonald. The latter testified that this conversation was similar in nature to his July 15 or 16 conversation with Barcon in that Schnaittacher requested Burgess' name be removed from the work schedule because Burgess was not "At that time Burgess was on the 2.30- 10 30 p.m shift. "The fact that these men were Respondents' pickets is not disputed "This private road , which branches off U.S Highway 60-70, is adjacent to the famous Apache Trail UNITED STEELWORKERS AND LOCAL 586 193 a Union member and his reply that the Company did not intend to comply with said request and that Schnaittacher then remarked, "The Union could not be responsible for anything that may happen to Burgess ... [and] the Union had objected to [Burgess] going across the field" going to and upon leaving work." On July 17 or 18, Burgess telephoned, MacDonald stating that he was afraid to cross the Union's picket line and therefore thought it advisable for him to immediately take the 3 weeks' vacation due him because "anything could happen [to him] on getting through the picket line" and, moreover, the strike might be over before he returned from his vacation. MacDonald agreed that it was a good idea for Burgess to go on vacation then. During the period of Burgess' vacation," which lasted from July 19 through August 6,20 Respondents had no pickets at the entrance customarily used by the pump station employees." According to Burgess' schedule his first work assignment upon his return from vacation was to be the August 9 graveyard shift (midnight to 8 a.m.). Shortly before reporting for work on Wednesday, August 9, Burgess called the Union hall and asked to speak to Barcon.22 Regarding the above referred to telephone conversation, Burgess testified that he asked Barcon for a pass to go through the picket lines in order to go to work; that Barcon replied, "he had nothing to do with [Burgess'] case, it [had been] turned over to the International, to Mr. Schnaittacher"; that he then asked to speak to Schnaittacher, that when Schnaittacher came to the telephone he inquired "about the business of my [Union] application"; that when Schnaittacher replied he knew nothing about it, he asked for a pass to go through the picket lines in order to go to work; that Schnaittacher said he could not give him one; that when he said "I'm going to the Labor Board," Schnaittacher said, "once it's in the Labor Board that will be the end of it"; and the conversation ended when Schnaittacher remarked, to quote Burgess, "He would not be responsible for me if I went through the picket line." Schnaittacher testified on direct examination by the General Counsel, that during the aforementioned August 9 telephone conversation with Burgess, after telling Burgess that he would not get a pass because passes were only given to Union members so that the pickets would know that those members showing passes were working behind the picket lines with the Union's permission he told Burgess, "I could not guarantee what might happen to him off the job and, specifically, I said to him, as nearly as I can recall, something to the effect that if he acted as he used to and mouth off at the bar, I couldn't be responsible for somebody taking a poke at him, but we were not going to interfere with him going to work"; that he also told Burgess that Burgess "was free to go to work when he was scheduled, and if he went he would have to "Referring to Burgess using the country club road on July 16. "Incidently, Burgess did not leave town during this vacation period "Burgess was not scheduled to work on July 17 or on July 18. In fact, Burgess' work schedules show that he would have worked had he not gone on vacation on July 19, from said date through July 23, from July 26 through July 30; from August 2 through August 6, with the intervening dates as regular scheduled days off. "The fact that a picket line was placed at the entrance used by the pump station employees only when Burgess was scheduled to work is not disputed by Respondents. "Miami Local No 586 held their regular executive board and weekly membership meetings on Wednesday evenings. go through the picket line but no one at the picket line would molest him"; that he also said "it was the position in [of] the Union that we prefer him not to go to work, that we preferred that only members should work with our passes, but this matter was not under our control because the company had scheduled him and that we were not able to change the position of the company and that if he went he would not be interfered with"; and that when Burgess stated that he had tried to become a member of the Union and the Union refused him membership, he replied, "I said that was not my concern, I didn't know anything about it, that it had no bearing on the matter at hand." During the course of his examination by counsel for Burgess, the Charging Party herein, Schnaittacher testified as follows: Q. (By Mr. Petica) Mr. Schnaittacher, referring your recollection to the telephone conversation that you had with Mr. Burgess, did you advise Mr. Burgess that, "If he insisted on going to work as scheduled, there would be no violence, although he knew the members did not like him to go and he should understand we would not make him any guarantee of what might occur if he did go to work." Did you tell that to Mr. Burgess or words to that effect? A. Something along that line Q. And you also advised him that, "The Union would not engage in any violence toward him, but we were not responsible for other people' A. I think that is essentially what I told him, but it was coupled, of course, with remarks to the facts of his behavior in general, in the town, if it led him to getting in fights and so on, this would be his problem, in fact, I advised him to kind of behave himself and not go out looking for trouble. Upon the entire record in the case, coupled with the fact that Barcon and Schnaittacher each gave the Trial Examiner the distinct impression that he was studiously attempting to conform his testimony to what he considered to be to the best interest of Respondents, while, on the other hand, Burgess impressed the undersigned as being a sincere and forthright witness, the Trial Examiner finds that Burgess' versions of what transpired during his aforementioned telephone conversations with Barcon and Schnaittacher to be substantially in accord with the facts. Moreover, MacDonald, not only was a credible witness but, in addition has no personal interest, nor stake, in the outcome of the proceeding, substantiated, in the main, Burgess' testimony whenever his testimony bore directly on matters pertaining to Burgess' controversy with Respondents thereby giving credence to Burgess' entire testimony. William Manues, Jr., testified under direct examination by the General Counsel, and the Trial Examiner finds, that he has been working for the Employer for about 12 years; that at the time of the hearing he was a Union member working at the Employer's Christmas, Arizona, facilities; 23 that he attended the Union's August 9 general membership meeting;21 that during the course of said meeting, Barcon , who chaired the meeting and which was attended by Schnaittacher, various union officers, and various executive board members, announced, to quote "These facilities are located about 30 or 35 miles from the Employer's Inspiration operations "While Manues did not specifically place this meeting as having been held on August 9, the record clearly indicates , and the Trial Examiner finds, that he was referring to the meeting held on said date 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manues, "They had a special picket out they wanted pulled, they wanted volunteers"; that Barcon also stated in his announcement that this special picket duty was for that night only; that he and about 9 other members volunteered to do the requested special picket duty;25 and that at the conclusion of the aforementioned membership meeting the appropriately ten volunteers went into a private office with Barcon, some other union officers, and Schnaittacher. According to Manues' credited testimony 16 the following transpired at the aforesaid private office meeting. Q. To the best of your recollection, tell us what was said at that time when the group of volunteers went in to speak with the Union representatives? A. Well, I heard someone was breaking the picket line and they told - asked if we would go but they didn't want no violence. Q First tell me who spoke, we have to identify the speaker who said that. You mean Mr. Barcon? A I'm not sure. Q. Could you begin again and tell us what, to the best of your recollection, what he said? A. He heard he was going to have some picket line breakers and they wanted someone to stand watch there but they didn't want no violence whatsoever. Q. Did they say who the picket line breaker would be? A. I never heard them say who it was. Q. Was any reference made to passes during that discussion or conversation? A. If they had passes, let them through. Q. If they didn't have passes? A. Try to stop them but with no violence. Regarding the events which transpired after the August 9 general membership meeting the credited evidence establishes that beginning at about 9:30 or 10 o'clock that night, Union pickets were stationed at all entrances leading to the pump station, including at the entrance leading to the aforementioned private country club road; that Manues and three or four other Union members picketed the entrance leading to said private road for about 3 hours; that Schnaittacher also picketed at the entrance to said private road from about 9 or 10 p.m. until, as he testified, "sometime not too long before midnight"; and that while the private road entrance was being picketed, the following occurred, to further quote Schnaittacher, "Someone said, `There goes Burgess,' and pointed to a pickup truck driving past." Burgess, as noted above, was scheduled to work on the August 9-10 graveyard, -midnight-8 o'clock shift. At about 11 p.m., Burgess drove toward the pump station main entrance preparatory to going to work. As he approached said entrance, Burgess saw about 10 or 11 pickets there and about five or six automobiles in the vicinity thereof. Thereupon, Burgess turned his car around, parked across the highway from the aforesaid entrance for 3 or 4 minutes, and then "drove on." The next night, August 10, Burgess' son, Terry, drove Burgess and a Mr. Negarri, a coworker of Burgess as well as a neighbor, to the main entrance leading to the pump station. As young Burgess drove to the said entrance, "The record does not disclose whether this announcement was made by Barcon before or after he and Schnaittacher had their telephone conversations that night with Burgess "Manues, although called by the General Counsel, appeared to the Trial Examiner to be a very reluctant witness Burgess saw live pickets and a picket sign reading, "Local 586 on strike." Because the pickets were standing in the entrance driveway it was physically impossible for young Burgess to drive the car into the plant. Under the circumstances, in order to report for work it was necessary for Burgess to get out of the car near the aforesaid entrance. As Burgess approached the entrance, he said to the pickets, to quote from his credited testimony, "I'd like to get through to go to work." When one of the pickets replied, "You have to have a pass," Burgess replied that he had none. Burgess then left the plant entrance and went home after said picket remarked, "Nobody has a pass is not getting through." 27 On August 11, Burgess telephoned MacDonald and said he was unable to go to work because of the picket line and asked that his name be removed from the work schedule because he thought it was unfair to the company to have to continue to "double over" people .21 On August 31, Burgess filed a charge with the Board which is the basis of the complaint of the instant proceeding. On or about October 17, the parties herein entered into a temporary settlement agreement and Burgess returned to his normal work schedule at that time. Subsequently, for reasons apparently not here pertinent, Respondents withdrew from said agreement. C. Concluding Findings The Trial Examiner is convinced, and finds, upon the entire record in the case, as epitomized above, that Respondents, and each of them, violated Section 8(b)(1)(A) and (2) of the Act. It is true, as MacDonald testified, that a pass was not necessary before a man was permitted to work and it is equally true that on July 15 and on July 16, Burgess did work without first securing a union pass. The fact, however, remains that on July 15, there were no pickets at the main entrance which Burgess and the other pump station personnel normally used to go to and from work and that on July 16, Burgess proceeded to his work area via the private country club road in order not to encounter the pickets stationed that day at the entrance normally used by the pump station personnel going to and from work. It thus follows that Respondents' contention, as expressed at the hearing and in their brief, that they had "every right" to put up a picket line "against" Burgess or to refuse him a pass because the picket line was established only "when Burgess was scheduled to work not because Burgess had no pass but because he was not a member of the Union" is not only belied by credited evidence but is without merit or substance 29 ='Burgess' testimony regarding this August 10 incident is uncontradicted :"`Double over" means the employee on a preceding shift works two consecutive shifts "It is significant to note at this juncture the credible and undemed testimony of Manuel' nephew, William Hughes, who testified that he has been a pump station employee at the Inspiration facilities for over 11 years and has been a member of Respondents and/or their predecessors for about 4 or 5 years, that about 2 months ago he tendered his resignation to Respondents, that during the conversation, which took place about the third week of August 1967, he had with two of his uncles, William Manues (a witness referred to in this Decision) and Jesse Manues, wherein William Manues said that he and some other pickets had been "picketing the pump station" and had been "patrolling the Apache Trail and also the field" on a certain Wednesday night, and the pickets were not "going to let Frank Burgess go to work and if somehow he did get to work he would probably be pulled off." The only time William Manues did picket duty was on Wednesday, August 9, at which time he picketed at the private country club road which is adjacent to Apache Trail UNITED STEELWORKERS AND LOCAL 586 Furthermore, the fact that Respondents and the Employer had agreed orally before the commencement of the strike that Respondents should man the pump station, did not, as the General Counsel pointed out in his brief, "clothe Respondents with immunity with regard to their refusal to issue Burgess a pass because of his non-membership in Local 586 [footnote omitted], when its object was to prevent Burgess from going to work That the real object of the Union's refusal to issue Burgess a pass is revealed by the fact that the only significance the work pass had was to alert pickets at the Kiser Pump Station to keep Burgess and other employees without passes from going to work [footnote omitted]." By such actions, the Trial Examiner finds that Respondents restrained and coerced Burgess in the exercise of the rights guaranteed in the Act by refusing to issue him a pass because he was not a Union member. This finding becomes inescapable when consideration is given to the fact that by refusing Burgess a work pass, Respondents, in effect, signaled the pickets stationed at all entrances to the pump station not to allow Burgess to go to work. It also should be borne in mind that Respondents' officials, at least some of them, were disturbed because Burgess resigned from Miami Local No. 586 in 1964 or 1965 or because he would "mouth off" at the local bars about the Union, and that this unpleasantness was a real factor in the Union's refusal to permit Burgess to regain his membership in Miami Local No. 586 and thus Burgess' inability to get a pass during the strike prevented him from working his scheduled hours.30 W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with business operations of the Employer 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 It having been found that Respondents had engaged in certain unfair labor practices violative of Section 8(b)(1)(A) and (2) of the Act, it will be recommended that Respondents take certain affirmative action to effectuate the policies of the Act. Counsel for the Charging Party requested on the record that the Trial Examiner award Burgess backpay and other monetary compensation as a result of Respondents' illegal conduct. Under established Board precedent, a labor organization may be required to pay backpay only where it causes an employer to unlawfully discriminate against an employee. Colonial Hardwood, 84 NLRB 563. In the instant case, Respondents attempted to cause the Employer to discriminate against Burgess. However, the Employer did not accede to this request by the Union and did not in fact discriminate against Burgess, so there was "The legislative history of Section 8(b)(A)(1) and (2) demonstrates that one of the major purposes of these sections was to eliminate the very practices here engaged in by Respondents including the prevention of a person from going to work because "the union does not like him." (Statement of Senator Taft, 93 Cong Rec. 3836, 4191.) 195 no "causation" within the meaning of the Act. The Union did, in fact, prevent Burgess from going to work by threats and picketing which were violative of Section 8(b)(1)(A) of the Act. The Board has held that under such circumstances the employee involved is not entitled to backpay. International Union of Operating Engineers, Local 513 (Long Construction Company), 145 NLRB 554, 555. In order to make effective the interdependent guarantee of Section 7, to prevent a recurrence of unfair labor practices and thereby minimize industrial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, the Trial Examiner will recommend that Respondents cease and desist from in any manner infringing upon the rights of the employees of the Employer guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. Inspiration Consolidated Copper Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act - 2. Respondents are labor organizations within the meaning of Section 2(5) of the Act 3. By refusing to grant Frank D. Burgess a pass to work during Respondents' strike against the Employer; by threatening Frank D. Burgess with violence in order to prevent him from working; by establishing and maintaining picket lines solely for the purpose of preventing Frank D. Burgess from working and in order to intimidate him, by blocking Frank D. Burgess' ingress to and egress from the Employer's premises; by refusing to permit him to cross the Respondents' picket lines; by engaging in all of such conduct because the said Frank D. Burgess was not a member of Respondents' labor organization, and for other irrelevant, invidious and unfair reasons, Respondents restrained and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. By attempting to cause the Employer to discharge, lay off, and otherwise discriminate against Frank D. Burgess in violation of Section 8(a)(3) of the Act, Respondents have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(b)(2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, the Trial Examiner recommends that United Steelworkers of America, AFL-CIO and its Local Union No. 586, United Steelworkers of America, AFL-CIO, their respective officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to issue to Frank D. Burgess or to any other person a work pass to which they are entitled to under the Act. (b) In any manner causing or attempting to cause Inspiration Consolidated Copper Company, Inspiration, Arizona, to discriminate against its employees, including Frank D . Burgess, in violation of Section 8(a) of the Act. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Restraining or coercing employees of Inspiration Consolidated Copper Company, 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, and to engage in other concerted, activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at their respective business offices and at any other place where they customarily post notices to their members, copies of the attached notice marked "Appendix."31 Copies of said notice, on forms provided by the Director for Region 28, shall, after being duly signed by a duly authorized representative of each Respondent, be posted immediately upon receipt thereof, and maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where Respondents customarily post notices to their respective members. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Director for Region 28, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith.32 "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals enforcing an Order" shall be substituted for the words "a Decision and Order" "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify the Regional Director for Region 28 , in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF UNITED STEELWORKERS OF AMERICA, AFL-CIO, AND ITS LOCAL UNION No. 586, UNITED STEELWORKERS OF AMERICA, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner 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: WE WILL NOT cause or attempt to cause Inspiration Consolidated Copper Company, its officers, agents, successors, or assigns, to discriminate against any of its employees in violation of Section 8(a)(3) of the Act. WE WILL NOT restrain or coerce employees of Inspiration Consolidated Company, its officers, agents, successors, or assigns, in the exercise of the rights guaranteed in Section 7 of the Act, or in their right to refrain from all or any such concerted activities. UNITED STEELWORKERS OF AMERICA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) LOCAL UNION No. 586, UNITED STEELWORKERS OF AMERICA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Resident Office, Room 207 Camelback Building, 110 West Camelback Road, Phoenix, Arizona 85013, Telephone 261-3717.