R. M. & L. Co.

308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James T. Rossini t/a R. M. & L. Co. and Vernon E. Noakes United Mine Workers of America, District 4, and its Local 1319 and Vernon E. Noakes . Cases 6-CA- 8936 and 6-CB-3575 February 18, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On October 15, 1976, Administrative Law Judge Sidney J. Barban issued the attached Decision in this proceeding. Thereafter, Respondent Union 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dents James T. Rossini t/a R. M. & L. Co., Mason- town, Pennsylvania, its officers, agents, successors, and assigns, and United Mine Workers of America, District 4, and its Local 1319, Fairchance, Pennsylva- nia, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as modified herein: 1. Substitute the following for paragraph A, 1(b): "(b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act." I Respondent Union has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F 2d (C.A 3,195 1). We have carefully examined the record and find no basis for reversing his findings 2 In his recommended Order the Administrative Law Judge uses the narrow cease-and-desist language, "in any like or related manner." Respon- dents here have committed violations which go to the very heart of the Act. We shall therefore require Respondents to cease and desist from in any other manner mfnngmg upon the rights guaranteed to employees by Sec. 7 of the Act. N L R B v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A 4,194 1), H C Macaulay Foundry Company, 223 NLRB 815 (1976). 228 NLRB No. 42 2. Substitute the following for paragraph B, 1(b): "(b) In any other manner restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act." 3. Substitute the attached notices for those of the Administrative Law Judge. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT encourage membership in United Mine Workers of America District 4 and its Local 1319, by discharging, or laying off, or otherwise discriminating against employees in their employ- ment, except as permitted by a valid collective- bargaining contract or the National Labor Rela- tions Act. WE WILL NOT in any other manner interfere with, restrain. or coerce our employees in the exercise of rights guaranteed by the National Labor Relations Act. WE WILL offer Vernon E. Noakes, to the extent we have not already done so, immediate and full reinstatement to his former job or, if his former job no longer exists, to a substantially equivalent job, without prejudice to his original seniority or other rights and privileges, and WE WILL, jointly and severally with United Mine Workers of America District 4 and its Local 1319, make Vernon E. Noakes whole for any loss of pay or benefits which he suffered by reason of the discrimination against him. WE WILL restore Vernon E. Noakes to the position on the bargaining unit seniority list, and to the seniority which he held prior to the discrimination against him. JAMES T. ROSSINI T/A R.M.&L.Co. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause James T. Rossini t/a R. M. & L. Co. to discharge, lay off, or otherwise discriminate against employees ex- cept as may be permitted by a valid collective- bargaining contract or the National Labor Rela- tions Act. R.M.&L.CO. WE WILL NOT in any other manner restrain or coerce any employee in the exercise of rights guaranteed by the National Labor Relations Act. WE WILL, jointly and severally with James T. Rossini t/a R. M. & L. Co., make Vernon E. Noakes whole for any loss of pay or benefits which he suffered by reason of the discrimination against him. UNITED MINE WORKERS OF AMERICA DISTRICT 4 AND ITS LOCAL 1319 DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Administrative Law Judge: This matter was heard at Uniontown, Pennsylvania, on June 23, 1976, upon a consolidated complaint issued on March 31, 1976, based on charges filed by Vernon E. Noakes (herein Noakes) against James T. Rossini t/a R. M. & L. Co., (herein Respondent Company or the Company) and against United Mine Workers of America District 4 and its Local 1319 (herein Respondent Union or the Union) on January 19, 1976. The complaint alleges that, at various times, Respondent Union demanded that the Respondent Company lay off, refuse to reinstate, and deprive Noakes of his seniority because of his failure to take an oath of membership in the Union, thus violating Section 8(b)(1)(A) and (2) of the Act, and that Respondent Company laid off, refused to reinstate, and deprived Noakes of his seniority in accordance with the Union's demands, thus violating Section 8(a)(1) and (3) of the Act. Respondent's answers deny the commission of the alleged unfair labor practices, but admit allegations of the complaint sufficient to justify assertion of jurisdiction under current standards of the Board (Respondent Compa- ny, engaged in the mining of coal in Pennsylvania, during a recent annual period, sold and delivered goods and materials valued in excess of $50,000 to enterprises which are directly engaged in interstate commerce), and to support a finding that Respondent Union is a labor organization within the meaning of the Act. Upon the entire record in this case,' from observation of the witnesses and their demeanor, and after due consider- ation of the briefs filed by the General Counsel and the Union (no brief was received from the Company), I make the following: I At the request of General Counsel made at the hearing, I have taken notice of the formal documents in Case 6-RC-7194 in which the Union was certified to represent certain employees of the Company 2 Respondent Company denied in its answer that Santilla was a supervisor or agent. However, he was described in the record by Rossini as general manager and supervisor. He had an office at the place Respondent Company maintained its main offices, was described by Rossini to Noakes as FINDINGS AND CONCLUSIONS 1. THE FACTS 309 In making the following findings I have considered the entire record, including the various conflicts and inconsis- tencies therein. In assessing credibility of witnesses I have taken into account the demeanor of the witnesses and the probabilities inherent in their testimony in light of the entire record. Testimony which is inconsistent with the findings and conclusions made below are not credited. A. The Persons Involved From admission of allegations of the complaint, and from the record as a whole, I find: (1) The following were agents of United Mine Workers of America, District 4, within the meaning of the Act, at all times material to the complaint: John DiBaise, president of District 4; and John Jakubik, executive board member of District 4. (2) The following were agents of United Mine Workers of America, Local 1319, within the meaning of the Act, at all times material to the complaint: John DiBaise; John Jakubik; Biondi Vechiolla, president of Local 1319; Wil- ford W. Bolinger, Frank Buterbaugh, and Larry Paugh, committeemen of Local 1319. (3) The following were agents and supervisors of Respon- dent Company within the meaning of the Act at all times material to the complaint : James T. Rossini, president and owner of the Company, and Guildo Santilla, general manager of the Company.2 (4) Noakes was not at any time material to the complaint a supervisor within the meaning of the Act. Respondent Union's brief argues that the Union had cause to believe that Noakes was a supervisor and that confusion over that issue in part caused the Union to take the actions described below. However, there is no evidence that Noakes was ever a supervisor within the meaning of the Act while employed by the Company. The evidence indicates that for a short period, in the absence of the Company's foreman at the Ponic Farm location, Rossini used Noakes to relay messag- es and instructions to the men there, in addition to his regular duties. According to Rossini, this was the only location where this occurred. Noakes was clearly trans- ferred to another location well before the initial bargaining agreement between the Union and the Company was executed. Further, I do not credit those union witnesses who testified that the Union and its members thought Noakes was a supervisor excluded from the coverage of the bargaining agreement during the times material to this case. It is admitted that such supervisors are not eligible to become union members, but it is also clear that the Union and the union members were upset because Noakes had not appeared at union meetings prior to October 20, 1975, to take the oath of membership in the Union. Further, when Rossini's "second in command," and attended meetings together with Rossini dealing with Noakes' employment and other labor relations matters Santilla also exercised supervisory functions over the employees. Santilla was thus held out as a representative to speak for the Company and the employees were justified in believing he had that authority. On occasions when Noakes sought reinstatement to his job from Santilla , the latter refused on grounds previously adopted by Rossini. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rossini submitted the bargaining unit seniority list to the Union at a meeting on October 4, showing Noakes as first among unit employees in seniority, the Union apparently raised no question with respect to this listing.3 Rossini testified that he considered Noakes to be in a classification covered by the union contract. B. The Significant Events Noakes was employed by the Company in October 1974. During the periods with which we are here concerned, he was an equipment operator. After an election conducted by the Board, the Union was certified on August 19, 1975 (all dates hereinafter are in 1975), as the bargaining representative of all the Company's production and maintenance employees including truckdri- vers, excluding all other employees, guards, professional employees, and supervisors. The Company and the Union signed a collective-bargaining agreement on September 13, which contained a union-security clause requiring covered employees to become union members (General Counsel does not attack the validity of the clause) and a provision requiring the Company to check off dues and initiation fees for employees who authorized this. Although Noakes did not sign an authorization for checkoff of his dues and initiation fees, the Company nevertheless checked off those sums from Noakes' pay and transmitted the money to the Union. Noakes clearly knew this was being done and seems to have acquiesced in it. However, Noakes took no steps to become a union member and did not attend the union meetings. Other employee members of the Union were apparently dissatisfied with Noakes' failure to attend meetings and become a member, and complained to the union officers. (Union officers also assert that the members complained of antiunion remarks made by Noakes. However, such remarks seem to have been that, if given a choice, Noakes would prefer not to join the Union.) On October 20, Rossini summoned Noakes to his office and informed him that "someone from the Union" had advised Rossini that Noakes had not taken the oath of membership and had not been initiated into the Union, and that Noakes therefore could not work, that the various union members would not work with him. Rossini instruct- ed Noakes that he could not work until the matter was straightened out, that he should go to see Union Commit- teeman Bolinger, on company time, at one of the Compa- ny's projects to see if he could get the problem resolved. Rossini testified that, about October 20, he had a conversation with Bolinger about Noakes' refusal to take the oath to become a union member, during which Rossini promised to talk to Noakes about this. Bolinger also recalled a conversation with Rossini to this effect. From this, and upon the record as a whole, I infer and find that, prior to Rossini's talk with Noakes, Bolinger had advised Rossini that the Union objected to Noakes' working for the Company because Noakes had not taken an oath of membership. Noakes spoke to Bolinger on October 20 at a company jobsite. Bolinger told Noakes that he could not work for the Company until he took the oath of membership, but said he (Bolinger) would try to arrange for Noakes to take the oath without having to wait for the next union meeting date. On the next day, when Noakes again visited Bolinger on the company jobsite, Bolinger said he had checked with someone from "the District," and was informed that it would not be proper for Noakes to take the oath except at a regular union meeting. About a week later, Bolinger called Noakes and advised him to attend a meeting at the Company's office on October 30, at which his employment would be discussed. This meeting was held, apparently under the terms of the contract, to discuss and attempt to resolve problems between the Union and the Company, without regard to whether a formal grievance had been filed. Representing the Union were DiBiase, Jakubik, Vechiolla, Bolinger, Buterbaugh, and Paugh. Present for the Company were Rossini, Santilla, and a foreman, Jarry Jerrech. During the course of the meeting, Noakes was asked by a union representative what his feelings were concerning the Union. Noakes replied that, if he had a choice, he would not join the Union but that, if he had to, he would. He informed the Union that his initiation fees and dues had been checked off from his pay and remitted to the Union. One of the union representatives asked if he wanted his money back. Noakes replied that he did not want a refund, he only wanted to go back to work. Vechiolla stated that Noakes was considered antiunion because he had not attended union meetings, and that the men refused to work with him because he had not been sworn into membership in the Union. Vechiolla stated that the Union could not have an antiunion man working with top seniority, while union men were laid off and not working. Jakubik states all the union representatives present concurred. Buterbaugh added that other union members would not work with him because he had not been sworn in. After being excluded from the meeting for some time, Noakes was recalled and informed that, if he were sworn in at the next regular Union meeting, he could go back to work. He was informed, however, that he would be put on the bottom of the seniority list, and could only return after all of the laid-off men had been recalled. Rossini agreed that Noakes should be placed at the bottom of the seniority list in order to avoid trouble. Noakes agreed to come to the next union meeting to be sworn in. He was then given a slip of paper showing the time and the date, November 30, of the next union meeting and told to present it at the door to be admitted. On November 30, Noakes attended the union meeting and was given the oath of membership. The next day, he called Vechiolla to inquire when he could go back to work. Vechiolla said that Noakes was now at the bottom of the seniority list and could return only when all laid-off men were returned to work.4 Noakes next contacted Santilla and informed him that he (Noakes) had taken the membership oath and wanted to know when he could return to work. 3 I have considered that Rossini listed two supervisors on the seniority list bottom of the seniority list because he had been a foreman.This is not also, but these were denoted as supervisors by the notation "sup." Noakes credited The record as a whole is convincing that the request that Noakes be was not so designated. placed at the bottom of the seniority list was made because he had failed to 4 Vechiolla asserts that he told Noakes that Noakes would be at the become a union member. R.M.&L.CO Santilla advised Noakes that the Company could not put him back to work until all the laid-off men had been recalled. Some weeks later, Noakes again went to see Santilla about returning to work, at which time Santilla told him that there were still men laid off and Noakes could not return until they had returned to work. On January 19, 1976, as has been noted, Noakes filed charges against the Respondents. On February 21, 1976, Rossini told Noakes that he would be recalled to work and he returned to work on February 24, 1976.5 After refusing to sign a back-dated authorization, Noakes executed a dues-checkoff authorization dated as of the time of his return to work. 11. ANALYSIS AND CONCLUSIONS In this case, the Union demanded, upon threat that the other employees would not work, that the Company lay off Noakes because he had not become a member of the Union and had not signed a checkoff authorization in favor of the Union, and later that Noakes be dropped from the top of the seniority list to the bottom, and not be recalled to work until all union members previously laid off had been recalled. The Company complied with these demands because it wished to avoid "trouble" with the Union. However, at the time the Union made its demand that Noakes be laid off, and at the time the Company complied with the demand, both the Respondent Company and the Respondent Union knew, or had reason to know, that Noakes, though not a member of the Union, had remitted to the Union the customary initiation fee and dues required of employees.6 The Union argues in its brief that the Union's actions in this case were merely directed at obtaining full compliance by Noakes with the union-security clause in its contract with the Company. The brief contends that "pursuant to the contract . . . Noakes had a thirty day grace period to comply with the security provision by executing a dues authorization form and become a Union member... . When the UMWA raised the question of Noakes' status with the employer it was properly exercising its legal right to protect itself against'Free Riders' who had notjoined the Union, taken the oath and, most importantly not signed the dues checkoff authorization." However, it is well settled that, so long as an employee tenders the dues and fees uniformly required of members, the union may not legally demand his discharge or layoff under a union-security clause in bargaining contract, even though the employee refuses to become a union member, nor may an employer knowingly comply with such a demand in those circumstances. See, e.g., N.L.R.B. v. Hershey Foods Corporation, 513 F.2d 1083 (C.A. 9, 1975). Nor may an employer or union require that such payments to the union be made by checkoff from the employee's pay. While the employee may choose to have his payments made 3 In the interim , during a short period, Rossini hired Noakes as a night watchman (a fob not covered by the bargaining agreement ) at what appears to have been a remote location. 6 Notwithstanding that the caption of the complaint and the allegations of par. 6 of the complaint indicate that District 4 and Local 1319 may be separate entities, the parties throughout have treated them as a single labor organization Thus the complaint alleges, and the Union answer admits, that "United Mine Workers of America District 4 and its Local 1319" "is now 311 pursuant to a checkoff authorization, the Act guarantees to each employee the right to determine for himself, free from coercion, whether he shall sign a checkoff authorization or not. See Baggett Industrial Constructors Incorporated, 219 NLRB 171 (1975). Similarly, the Union's demand that Noakes be dropped to the bottom of the seniority list, and not be recalled until other union members on layoff were recalled, and the Company's compliance with that demand, served to dis- criminate against Noakes, and to encourage membership in the Union, in violation of the Act. See, e.g., N.L.R.B. v. Beth E. Richards, d/b/a Freightlines Equipment Company, 265 F.2d 855 (C.A. 3, 1959). I have considered the Union's contentions that there is no showing that it had any ulterior motives in its actions, and that these actions were taken by union officers not versed in the law. However, these actions had a clear tendency to coerce and restrain employees in the exercise of rights guaranteed by the Act, and, as has been found, did violate the Act. In the circumstances of this case, this may not be excused by the assertion that the persons involved meant to act legally. For reasons stated, and upon the record as a whole, I find that the Respondent Union, by attempting to cause and causing the Company to discriminate against Noakes by laying him off, dropping him from the top of the seniority list to the bottom, and refusing to reinstate him until all other laid-off union members had been recalled, thus encouraged membership in the Union, and violated Section 8(a)(1)(b) and (2) of the Act; and that Respondent Company, by laying Noakes off, dropping him from the top of the seniority list to the bottom and refusing to reinstate him until all other laid-off union members had been recalled, at the demand of the Union, encouraged member- ship in the Union by discriminating against an employee, and violated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. Respondent Company, by discriminating against Vernon E. Noakes as found hereinabove, has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. 4. Respondent Union, by attempting to cause and causing Respondent Company to discriminate against Vernon E. Noakes, as found hereinabove, engaged in unfair labor practices in violation of Section 8(bX 1)(A) and (2) of the Act. and has been at all times material herein a labor organization within the meaning [of the Act ] " In its brief the Union refers to the Respondent Union only as the "UMWA," and the General Counsel refers to it as "the Union." The Respondent Union has therefore been treated as an entity in this Decision The facts in this case show that, to the extent that they may be considered separate entities, the officers of District 4 aided , abetted, and ratified the actions of Local 1319 which are the subject of this case , and I find that District 4 isjointly responsible with Local 1319 for those actions 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Company has engaged in certain unfair labor practices in violation of Section 8(axl) and (3) of the Act, and that Respondent Union has engaged in unfair labor practices in violation of Section 8(b)(l)(A) and (2) of the Act, I shall recommend that each cease and desist from its respective unfair labor practices and take certain affirmative actions designed to effectuate the policies of the Act. Having found that Respondent Company discriminatori- ly laid off Vernon E. Noakes on October 20, 1976, and that Respondent Union caused such discrimination , both in violation of the Act, I shall recommend that Respondent Company offer, to the extent it has not already done so, immediate and full reinstatement to Vernon E. Noakes to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his original seniority and other rights and privileges, and that Respondent Company and Respondent Union jointly and severally make Vernon E. Noakes whole for any loss of pay or other benefits he may have suffered from the date of his layoff until the date of the offer of reinstatement as aforesaid, less his net earnings during that period, in accordance with the Board's formula as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER? A. James T. Rossini t/a R. M. & L. Co., Respondent Company herein, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging or discouraging membership in United Mine Workers of America, District 4, and its Local 1319, or any other labor organization, by discriminating against employees with respect to their hire or tenure of employ- ment, except as may be permitted by Section 8(aX3) of the Act. (b) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Vernon E. Noakes, to the extent it has not already done so, immediate and full reinstatement to his former job or, if that job no longer exists , to a substantially equivalent job, without prejudice to his original seniority or other rights and privileges, and jointly and severally with Respondent Union make Vernon E . Noakes whole in the manner provided in the section above entitled "The Remedy." (b) Restore Vernon E. Noakes to the position on the bargaining unit seniority list and to the seniority which he held prior to October 20, 1975. (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports , and all other records necessary to facilitate the effectuation of the Order herein. (d) Post at its operations at or about Uniontown, Pennsylvania, copies of the attached notice marked "Ap- pendix A."8 Copies of said notice , on forms provided by the Regional Director for Region 6, after being duly signed by an authorized representative of Respondent Company, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps Respondent Company has taken to comply herewith. B. United Mine Workers of America, District 4, and its Local 1319, Respondent Union herein, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause James T. Rossini t/a R. M. & L. Co., Respondent Company, to lay off, discharge, reduce in seniority, or otherwise discriminate against employees with respect to hire or tenure of employment, except as may be permitted by Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing any employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Jointly and severally with the Respondent Company make Vernon E. Noakes whole as provided in the section above entitled "The Remedy." (b) Post at its offices and meeting halls copies of the notice attached, marked "Appendix B."9 Copies of said notice, on forms provided by the Regional Director for r In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings„ conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 8 In the event the Board's Order is enforced by a Judgment ofa United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 9 See fn. 8, above. R. M. & L. CO. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Region 8, after being signed by an authorized representa- tive of Respondent Union, shall be posted by Respondent Umon immediately upon receipt thereof, and maintained 313 by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material.