Credill Minter, Robert Linton, et al.

CREDILL MINTER, ROBERT LINTON, ET AL. 189 Credill Minter, Robert Linton, and Reese Parker, as agents of all employees who are members of Local No. 15108, District 50, United Mine Workers of America and Moss-American, Inc. Cases 14-CP-110 and 14-CC-500 August 21, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On December 26, 1968, Trial Examiner Robert Cohn issued his Decision in the above-entitled proceedings, finding that Respondents had not engaged in and were not engaging in certain unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party each filed exceptions to the Decision; the General Counsel and Respondents also filed briefs. 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 these cases 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, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. 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 orders that the complaint herein be, and it hereby is, dismissed in its entirety. 'We adopt the Trial Examiner's conclusion that Respondents did not attempt to displace the certified International Union as the bargaining representative of the Employer's employees . As the Trial Examiner found, Respondents could constitute a labor organization within the meaning of Sec. 2(5) of the Act. However, the Trial Examiner also found, and we agree, that in these cases Respondents were not seeking to be recognized or bargained with apart from the certified representative, and therefore did not by their conduct violate Sec. 8(b)(4XC) or 8(b)(7)(A). TRIAL EXAMINER'S DECISION 50, United Mine Workers of America, the General Counsel of the National Labor Relations Board (hereinafter the Board), through the Regional Director for Region 14, on September 18, issued an order consolidating cases, complaint, and notice of hearing.' The complaint alleges, in essence, that the above-named individuals "as agents of all employees who are members of Local No. 15108, District 50, United Mine Workers of America," by engaging in certain acts and conduct more fully detailed herein, committed unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(C) and 8(b)(7)(A) of the National Labor Relations Act, as amended (herein the Act). In apt time , the Respondents filed an answer to the complaint in which the jurisdictional allegations thereof were admitted; however, they denied the commission of any unfair labor practices. This proceeding, with all parties represented, was heard before me at St. Louis, Missouri, on October 17. At the conclusion of the hearing, counsel for the Respondents argued orally on the record. Posthearing briefs were filed by counsel for the General Counsel and by counsel for the Respondents, which have been carefully considered. From the entire record in this case, and from my observation of the demeanor of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS 1. COMMERCE The Company, a Delaware corporation, has, at all times material, maintained an office and place of business in East St. Louis, Illinois, where it is engaged in the manufacture, sale, and distribution of treated railroad ties, poles, timber, and related products. It maintains plants in several other States, but the only facility involved in this proceeding is its plant located at East St. Louis, Illinois. During an annual period, the Company manufactures and ships from said plant products valued in excess of $50,000 directly to points located outside the State of Illinois. Based upon the foregoing facts, I find, as the Respondents' answer admits, that the Company is an employer engaged in commerce and in an industry affecting commerce within the meaning of Sections 8(b)(4) and 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, and I find based upon uncontroverted evidence in the record, that International Union of District 50, United Mine Workers of America (herein sometimes called District 50 or International), is a labor organization within the meaning of Section 2(5) of the Act.' III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 'Pursuant to an election conducted by the Board among the Company's production and maintenance employees, STATEMENT OF THE CASE ROBERT COHN, Trial Examiner: Upon separate charges filed on August 23, 1968,' by Moss-American, Inc. (hereinafter the Company) against Credill Minter, Robert Linton, Clem Ballard, and Reese Parker, as agents of all employees who are members of Local No. 15108, District 'All dates hereinafter refer to the calendar year 1968 unless otherwise specified. 'The complaint did not name Clem Ballard as a Respondent. 'The parties are in agreement that the foregoing is the correct name of the International rather than simply District 50 , United Mine Workers of America, as alleged in the complaint. 178 NLRB No. 30 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the International was, on or about June 19, 1961, certified as the exclusive representative of such employees for the purposes of collective bargaining.' Thereafter, the parties negotiated and executed successive collective-bargaining agreements, the last such agreement having been negotiated in May 1967, to be effective for a term of 3 years through May 6, 1970. Following negotiation of the first collective-bargaining agreement in 1961, the International, as was its custom, chartered a local union to administer the agreement and carry on the affairs of the Union at the Company's plant. In this case the Local Union No. is 15108, and it is comprised solely of the employees of the Company. The named Respondents herein, Credill Minter, Robert Linton, and Reese Parker, are, and have been at all times material, officers of the Local Union and, as such, participated in the negotiations with the Company in May 1967, looking toward the consummation of a new contract. However, the negotiations on behalf of the employees were led by James W. Staton, the assistant regional director of region 45 of the International, which region comprises the Local Union. Using the old contract as a basis, the parties negotiated and agreed upon certain changes in the provisions thereof to be incorporated in the new contract. Certain changes were reduced to writing (G. C. Exh. 7) and presented by Staton to a special meeting of the membership of the Local Union on May 4, 1967, for the purpose of ratifying the new agreement At that meeting, the members voted 34 to 20 in favor of ratification of the new agreement. However, there was apparently some misunderstanding as to certain provisions the new contract should contain because when the final document was presented to the Local Union officers for signature later in the month, the latter refused to sign contending, in essence, that there had been additional agreements concluded which were not incorporated in the written documents Nevertheless, the contract was signed first by representatives of the Company, next by Staton and his superior Frank Crise, regional director for region 45 of the International, and finally by Elwood Moffett, president of the International. B. Events Leading to the Strike in August 1968 The contractual relations between the Company and its employees remained in the posture aforesaid from May 1967 until the summer of 1968. That is to say, the Company has always taken the position that it negotiated and secured from the collective-bargaining representative of its employees a valid, binding agreement in May 1967, which was signed by both parties, and which has been lived up to at all times by the Company. The same may be said for representatives of the International. However, the officers of the Local, as noted above, have never signed the agreement and presumably never felt 'At the time of the certification the name of the Company was T. J Moss Tie Company. The parties stipulated that subsequently , through a series of mergers and acquisitions , the name of the Company was changed to Moss-American, Inc. 'According to the testimony of Staton, a witness for General Counsel, there were agreed-upon changes relating to overtime assignment and starting time which did not necessitate a change in the language of the contract but only an understanding between the parties as to a proper interpretation of the language as written. themselves bound by it although the record reflects no action or conduct by them or the membership to renounce or rescind it during the period from May 1967 until July 1968. Indeed, the record shows that during such period of time there were grievances processed through the collective-bargaining agreement , some of which reached arbitration. However, in July, the Company received a letter dated July 8 from one David Owens, chairman of the labor and industry committee of the Illinois State Conference of NAACP, requesting the Company to cease forwarding any dues or assessments to the International "until you have written permission from each member of the Local No. 15108." Attached to such letter was a petition , signed by some 76 employees of the Company, which was headed by the following language: We the undersign [sic] members of local No. 15108, International Union of District 50, United Mine Workers of America, Employee [sic] of Moss-American, Inc., do hereby request that no futher [sic] union dues or assessments be taken out of members of localNo. 15108 checks to be sent to the International . That all such union dues and assessments taken out of our checks be turned over to our local treasury until such time our local authorizes otherwise. As a result of this letter and petition, the Company's personnel director , on August 1, wrote the following letter to the regional director of the International August 1, 1968 International Union, District 50 United Mine Workers of America Paul Brown Building, Rooms 462-463 818 Olive Street St. Louis, Missouri 63101 Attention : Mr. Frank Crise , Regional Director Dear Sirs: We enclose xerox copy of letter to Mr. Dale Ferguson, Superintendent of our East St. Louis, Illinois plant, from the Illinois State Conference of NAACP Branches dated July 8, 1968, with enclosures. Under Section 2, Article IV, of our collective bargaining agreement dated May 7, 1967, we agreed to deduct from the wages of each employee, in accordance with signed voluntary authorizations of the employees, the membership dues of the Union , including uniform monthly dues and initiation fees, and to transmit the amounts so deducted to your Secretary -Treasurer in Washington , D C. Under the contract you have agreed to save us harmless with respect to any claim, suit or judgment or other liability resulting from any deductions made from the employees' pay pursuant to the above authorizations and assignments . By separate letter, a copy of which is attached, we have advised Mr. Owens that under the contract we are obligated to recognize you and your representatives as the exclusive bargaining agents of our employees within the East St. Louis bargaining unit and have requested he refer our employees to you in respect to the subject matter of his letter. In compliance with out obligations under the contract, we shall continue to check-off dues and initiation fees of employees within the unit from whom we have received written check-off authorizations until we have received from them appropriate notice effectively terminating their respective written check-off authorizations. CREDILL MINTER , ROBERT LINTON , ET AL. 191 Very truly yours, /s/ Alan F. Gafford Personnel & Safety Supervisor On July 18, the president of the International suspended the Local's charter and placed it under the trusteeship of Regional Director Crise,, in which status it has remained to the present. On August 19, the production and maintenance employees of the Company concertedly ceased work and established a picket line about the Company's plant, which continued until it was enjoined on September 25 as a result of a Section 10(1) proceeding under the Act. The record reflects that there were two meetings held subsequent to August 19 in an apparent effort to settle the strike. The first of these was held on August 22 at the office of an attorney for the Company in East St. Louis. Representing the Company were two attorneys; for the employees were the three Respondents and the said David Owens, the latter being spokesman for his group. Owens contended that the employees did not have a contract with the Company, that they had requested the Company to cease checking off dues to the International but that the Company had not granted this request, and he presented some 11 demands (see G.C. Exh. 6) which he requested be incorporated in a contract with the Company. George Hecker, Esq., speaking for the Company, advised Owens that International had been certified as collective-bargaining agent and that a contract had been entered into with the International in May 1967; that the Company recognized that there was an issue as to whether or not there was a contract and as to who should receive the dues, but that the Company intended to institute proceedings with the Board to have those questions determined and in the meantime the Cpany would like to have the men return to work pendin isposition of the dispute by the Board. Owens responded that his group did not "understand the technicalities of the law"; that social and moral rights as well as legal rights were involved and that they did not have faith in the Board to resolve the problems, it was his view that the Company should deal with the committee and the men and if the Company would accede to their demands, the men would go back to work. The company representatives refused to do this, but did, in the interest of identifying and understanding the nature of the grievances, review the 10 or 11 demands submitted on General Counsel's Exhibit 6.6 However, there was no negotiation or resolution of any of these items at that meeting.7 The second meeting was held in the offices of the International on August 23. Present on behalf of the Company were its vice president and personnel director; present for the International were Regional Director Frank Crise, International Representatives Leslie Morgan and Sam Hider, plus the three Respondents. Hider was spokesman for the union side while Alan Gafford, personnel director, spoke for the Company. The latter indicated to the union group that the Company intended to continue honoring its contract with the International and that the employees should return to work, after which the Company would settle the problems at the bargaining table. Hider had the list of the aforesaid 11 demands which had been submitted but it was the Company's 'In the language of Hecker, "We wanted to understand what was behind the wildcat strike, so we did discuss these as well " 'The foregoing findings are based upon the credited testimony of Hecker; none of the other participants testified at the hearing. position that it would not discuss those demands until the employees were back in the plant and working. Hider indicated that unless the Company was willing to talk about the demands, there was no further reason to continue the meeting and it was adjourned.' The record reflects no further discussions or meetings between the Respondents and/or the International with the Company for the purpose of resolving the strike. As respects conduct on the picket line, the General Counsel offered the testimony of one Bob McDaniel, assistant superintendent of the plant. He testified that on August 19 he noticed about 70 or 75 men milling around the outside of the plant, some of whom were carrying picket signs. The signs bore the following legends: This Company discriminates, unfair to employees We have no insurance plan We work for slave wages, lowest wages in town The strike caused the plant to be completely shutdown -, none of the rank-and-file employees worked. However, the supervisory employees went to the plant almost daily for various purposes. On one of these occasions, on the morning of August 27, McDaniel called Respondent Minter over to the car and asked if the supervisors could get in. The latter replied that he did not think it would be best if they went inl-that on the morning of August 20 he was able to stop the other employees from doing any harm but there might be some trouble if the supervisors forced their way into the plant; that he personally had no objections but he was afraid he could not handle the other employees. McDaniel testified that essentially the same facts occurred the following day, August 28. On another occasion, McDaniel reported he spoke to pickets at the rear entrance of the plant who advised that they could not let the supervisors in the plant but that "Mr. Minter was at the front entrances, we might get permission from him to go in." On that occasion, Minter rode into the plant with the supervisors to inspect the property for vandalism and damage. Leslie Morgan, an International representative, testified that on August 19 he had a conversation on the picket line with Minter and told the latter that "this wildcat strike" was in violation of the contract. Minter replied that he did not consider they had a contract, that their purpose was to negotiate a contract, and that they would not go back until they got one. On August 21, Morgan and Hider went again to the plant and had a conversation with Minter in which Hider asked Minter to return to work and they would sit down with the Company and talk about the grievances. However, Minter told him that he could not return to work at that time because there were other employees involved, but that he would agree to meet with the Company for the purpose of exploring the differences. Analysis and Concluding Findings As previously noted, it is the contention of the General Counsel and the Charging Party that the Respondents, constituting a labor organization, have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(7)(A) of the Act (which section proscribes 'The foregoing findings are based upon the credited testimony of Gafford, none of the other participants at the meeting were called as witnesses 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain recognition and organizational picketing) and Section 8(b)(4)(i) and (ii)(C) of the Act (which section proscribes threats and coercion of an employer or inducement of employees to strike where an object is to force or require an employer to recognize or bargain with a labor organization where another labor organization has been certified under Section 9 of the Act). At the threshold, we are faced with the Respondents' position that the General Counsel has not proven "that these Respondents are a `labor organization' within the meaning of Section 2(5) and 8(b) of the Act." "Labor organization" is defined in Section 2(5) of the Act as follows: The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. It is, of course, true that the foregoing definition was cast in broad language purposefully to encompass all kinds of employee committees or plans within its ambit.' As the Board recently stated in a similar context, "[t]his [legislative] history [of Sec. 2(5)] shows that the definition was a broad one in order to extend the protection and limitations of Sections 7 and 8 to inchoate or informal groups as well as to established or traditional unions."'" But in Simmons, the Board refused to find a violation because it found that the respondent bargaining committee did not constitute a labor organization. For essentially similar reasons, I find and conclude that the committee composed of Respondents here did not, in the circumstances presented, constitute a labor organization within the contemplation of the statute. Thus we cannot and should not, in making a determination of this issue, lose sight of the history and context in which it arose. The International had been certified for some 7 years when this dispute arose. While it had chartered a local union for purposes of administration, which functioned in many respects autonomously, the fact remains that the May 1967 negotiations (as well as previous negotiations) were lead and directed by a representative of the International Union. A disagreement and dispute arose between the officials of the International and the Company on the one hand, and the members of the Local bargaining committee (which consisted of the officers of the Local Union) on the other, when the written document containing the 1967 contract failed to reflect agreement on certain provisions which the members of the Local committee apparently felt were arrived at during the negotiations. However, representatives of the Company and representatives of the duly certified bargaining representative, i.e., the International, proceeded to execute the written contract notwithstanding the feelings of the Local committee, and both took the position that it was a valid and binding agreement. This problem festered and became more aggravated during the ensuing year until the summer of 1968, when it finally exploded. The officers of the Local, feeling themselves - as their counsel put it -- "sold down the river" 'See, e.g., N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203, 212, and cases cited. "Comite de Empleados de Simmons . Inc.. 127 NLRB 1179, 1187, reversed and remanded 287 F.2d 628 (C.A I), 132 NLRB 242 (on remand). by the International, and being relatively unsophisticated and inarticulate respecting labor-management techniques, sought about for a new spokesman to present what they considered to be their legitimate grievances to management. Being predominantly Negro," it seems natural and fitting that the Local's officers sought the counsel and assistance of the local head of the NAACP. The latter wrote the July 8 letter to the Company on behalf of the Local's predominantly Negro officers and members, and no doubt assisted in the formulation of the language on the petition which was submitted therewith. As hereinabove set forth, he acted as the Local officers' spokesman at the first meeting with the Company following the strike. At the second meeting, held at the offices of the International, the spokesman was a representative of the International. These facts, when considered in the context of all the other evidence in the record, take on a high degree of significance, in the judgment of the Trial Examiner, in the light of the applicable precedents bearing upon this issue. Thus, while the committee composed of the Local officers might constitute an "employee representation committee or plan" within the literal language of the definition in Section 2(5) of the Act, it is evident that more is required to constitute such group a "labor organization." In a case cited by the General Counsel," the Board, in finding that the employee committee in that case constituted a labor organization, noted as a cardinal point that such committee "functioned as a distinct entity apart from (and in derogation of) the Union."" And in Simmons, supra, the Board, in concluding that the committee there did not constitute a labor organization, noted: The present case, however, involves a duly elected bargaining committee of an established union seeking to carry out thfunctions for which it was elected. Although suc a committee might, under some circumstances, become a separate labor organization, we are satisfied that the committee herein did not at any time become a labor organization but rather was at all times material "an internal and integral functioning part" of the SIU.'4 It is true that in the instant case, 1 of the 11 demands made by the committee was "for contract," and that some of the language attributed to Owens during the first meeting following the strike could be interpreted as a demand that the Company deal with that committee rather than officials of the International. But the record evidence taken as a whole seems to me to reflect a desire on the part of the Local officers and members to seek a satisfaction of their grievances within the framework of the existing relationship rather than as a separate and distinct organization . Thus, from the first, the language of the petition does not in any sense reflect a desire of the employees to resign from the International and/or seek membership in another labor organization, but simply to reallocate the distribution of union dues. And Respondents' subsequent participation in a meeting with the Company at the offices of the International, with an. International representative as spokesman, certainly does not affirm an intention on their part to seek recognition or conclude an agreement with the Company outside the "The record shows that the great majority of the Company 's production and maintenance employees are black ; the regional director of the International and his assistant are white men. "Long-Lewis Hardware Company, 90 NLRB 1403. "90 NLRB at 1415. 14127 NLRB 1179, 1187. CREDILL MINTER, ROBERT LINTON, ET AL. established collective-bargaining framework "and in derogation of the International. In this context, the phrase "want contract" clearly means a resolution of the misunderstanding which gave rise to the refusal of the Local officials to sign the original agreement rather than seeking a contract with the Company as the exclusive bargaining representative of the employees separate from the International." Accordingly, and based upon my evaluation of all of the evidence considered in the record as a whole, I find and conclude that the General Counsel failed to prove, by a preponderance of the evidence, that the Respondents constituted a labor organization within the meaning of the Act. Since this is a necessary predicate for a holding of a violation of Section 8(b) of the Act, I will recommend that the complaint be dismissed in its entirety."' CONCLUSIONS OF LAW 1. Moss-American, Inc., the Charging Party, is an employer engaged in commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. 2. Credill Minter, Robert Linton, and Reese Parker, as agents of all employees who are members of Local No. 15108, International Union of District 50, United Mine Workers of America, Respondents herein, do not constitute a labor organization within the meaning of Sections 2(5) and 8(b) of the Act. 3. The General Counsel has failed to prove that the Respondents have engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER 193 It is ordered that the complaint be, and it hereby is, dismissed in its entirety. "Hecker testified that in the meeting of August 22, he pointed out to Respondent Credill Minter that the employees were being paid what had been agreed upon and yet they were asking for more money. Minter acknowledged that some of the items included in the I1 demands were not unresolved issues, but were additional items. "Since we are asking for things . we might as well ask for whatever we want." However, this attitude would not seem to detract from or materially alter the basic reason for the concerted action It seems noteworthy that officials of both the Company and the International referred to the conduct of the employees as a "wildcat strike," meaning, in essence , that it was in derogation of the policy of the International While there may be important differences between the situation here and that reflected in the usual wildcat strike (such as, for example, that here the great majority of employees participated whereas normally only a minority is involved ), such characterization reflects "an effort to interfere with the collective bargaining by the duly authorized bargaining agent ..." (N L R B v. Draper Corporation , 145 F.2d 199, 202 (C.A. 4)) rather thanyat least at that point in timer-,to displace such agent as the collective-bargaining representative . Such conduct, of course , results in loss of protection of Section 7 rights, but does not-- as General Counsel's theory would seem inevitably to lead us-constitute a violation of Sec. 8(b). "Comite de Empleados de Simmons, Inc., supra. In view of this finding, I do not reach the other defenses raised by Respondents in oral argument. While I recognize, as previously noted, that the court of appeals reversed the Board in Simmons, I note that the Board accepted the remand while respectfully disagreeing with the court's decision ( 132 NLRB 242, 243) I am, of course , bound by the Board's decision until it indicates acquiescence in the contrary views of a court of appeals or until the U.S. Supreme Court rules otherwise (see Iowa Beef Packers, Inc , 144 NLRB 615, 616)