American Gilsonite Co.

National Labor Relations Board - Board Decisions

Oct 24, 1958

121 N.L.R.B. 1514 (N.L.R.B. 1958)

1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American -Gilsonite Company and United Steelworkers of
America, AFL-CIO. Case No. 20-CA-1296. October 24, 1958
DECISION AND ORDER
On April 11, 1958, Trial Examiner Howard Myers-issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and was not engaging in the unfair
labor practices alleged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General Counsel
filed exceptions to, the Intermediate Report and a supporting brief.
The Respondent filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) .of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this'ca8e; and hereby adopts'the findings,,conclusions, and recommen-
dations of the Trial Examiner with the following additions and
modifications.'
The General Counsel contends that the March 25 strike was' an
unfair labor practice strike and, hence, protected. We disagree. The
record shows that the employees struck because (a) among the 22
pump operators laid off by the Respondent on March 22, 1957, 5 had
more seniority than some operators who were retained,, and _(b) a
supervisor had said to some employees that "It didn't do any good to
file grievances since the Company only threw them in the wastebasket."
We find,` in agreement with the Trial Examiner,' that neither (a) nor
(b) constituted unfair labor practices; that the strike was therefore
not an unfair labor practice strike but an economic strike; and that,
since it was in violation of the no-strike provision in the contract
1 One of the allegations of the complaint is that the Respondent viblafed Section 8 (a) (3)
of the Act by unilaterally instituting aptitude tests for pump operator positions and by,
refusing to consult with the Union involved herein with regard to these tests . The Trial
Examiner found no violation in this respect because he found that, after the Union had
protested , the Respondent consulted with the Union concerning its grievances about this
matter and entered into an arrangement concerning the tests satisfactory to the Union.
As there is no basis in the record for finding any discrimination in the application of the
aptitude tests, we find , like the Trial Examiner , although for different reasons, 'that the
institution of the aptitude tests did not violate the Act. The complaint does not allege
and, therefore , we find it unnecessary to decide whether the foregoing conduct violated
Section 8 (a) (5) , of the Act.
- .121 NLRB No. 194.
AMERICAN GILSONITE COMPANY 1515
between the Respondent and the Union, the strike was unprotected
by the Act 2
Accordingly, when later in the day on March 25, the employees
voted to call off the strike and return to work, the Respondent was
privileged to-take disciplinary action against the five employees who
did not return to work after the cessation of the strike,3 and to dis-
charge them, as it did on April 2. The refusal of the five employees
to work was unprotected whether viewed as concerted activity or as
individual withholding of services. If the former, then their con-
certed activity in continuing to strike after the other employees had
returned to work was in violation of the no-strike provision of the
contract and thus unprotected. If the latter, then the Respondent
had the legal right, as does any employer, to take whatever disciplinary
action it thought fit against recalcitrant employees who refuse to
carry out their duties 4
It follows, therefore, that when the employees again went on strike
on April 2 in protest against the discharge of these five employees,
this strike also was an economic strike which was unprotected, being
in derogation of the contract's no-strike provision. Since the Re-
spondent clearly did not condone this second strike, it was privileged
to discharge all the- employees and to choose those whom it wished
to reemploy when it again started operations on April 17.5 The
Respondent therefore did not violate the Act, either by its refusal to
rehire three employees admittedly because they took leading parts
in the calling of the April 2 strike,' or by its refusal to reemploy
others on the grounds that they were unsatisfactory employees.'
2 Michigan Lumber Fabricators , Inc, 111 NLRB 579.
In some places in his Intermediate Report the Trial Examiner refers to the March 25
and April 2 strikes as "illegal " or "unlawful." We do not adopt such characterization,
but find only that they were unprotected
3 The Respondent admittedly condoned the original strike action of the employees in
return for their agreement to return to work on March 25, but, contrary to the contention
of the General Counsel, we find that the Respondent did not condone the subsequent re-
fusal to work that day by the five employees discussed above. Although the five were
permitted to return to work on March 26, for a period of about 1 week , the Respondent
served notice on the Union that it was contemplating disciplinary action for their failure
to return with the other strikers on March 25.
4 We note that the 5 employees themselves do not contend they were engaged in con:
certed activities , but rather that 4 testified at the hearing that they did not return to
work after the strike was called off on March 25 because they had had too much to drink,
and the fifth testified that he did not work because he had burned his hand. See Kennecott
Copper Corp , 121 NLRB 801.
5 N. L. R. B. v. Fansteel Metallurgical Corporation , 306 U. S. 240.
8 United Elastic Corporation , 84 NLRB 768, 777; Michigan Lumber Fabricators, Inc,
supra.
7The General Counsel contends that certain named employees were - not reemployed be-
cause of their union activities prior to the various events involved herein. The record
does not bear out this contention . Moreover , although under the circumstances the
Respondent did not need to justify its refusal to rehire these employees , we adopt the
Trial Examiner 's findings that the reasons given by the Respondent for not reemploying
them were true. - -
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
, Accordingly, as we find, in agreement with the Trial Examiner,
that the Respondent has not violated the Act as alleged in the com-
plaint, we shall dismiss the complaint.
[The Board dismissed the complaint.]
- INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Steelworkers of America, AFL-
CIO, herein called the Union, the General Counsel of the-National Labor Relations
Board, herein respectively called the General Counsel' and the Board, by the Re-
gional Director of the Twentieth Region (San Francisco, California), issued his
complaint on October 31, 1957, against American Gilsonite Company, Salt Lake
City, Utah, herein called Respondent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within the meaning of
Section 8 (a) (1)'and (3) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the amended charge and complaint, together with notice of hearing
thereon, were duly served upon Respondent and upon the Union.
Specifically, the complaint alleged that (1) on or about April 2, 1957, Respondent
discharged five named employees because they were members of and assisted the
Union and had engaged in certain protected activities; (2) on or about April 2 the
employees of Respondent's Bonanza, Utah, mine (the only employees here involved)
struck because, of certain unfair labor practices engaged in,by Respondent; (3) on
or about April 3 Respondent discharged all its Bonanza employees because they
struck in protest of Respondent's unfair labor practices; (4) on or about April 6
Respondent rejected the Union's unconditional offer to return to work and abandon
the strike; (4) on or about April 17 Respondent commenced recalling the strikers,
and as a condition of employment, rehired them as new employees without the
seniority rights and other privileges previously enjoyed by them; (5) on or about
April 20, Respondent refused to rehire 10 named strikers despite the fact that they
had previously applied for reinstatement to their former or substantially equivalent
jobs; and (6) since on or about March 25 Respondent's officers and other managerial
personnel engaged in certain stated action and conduct which interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, thereby violating Section 8 (a) (1) thereof.
On December 23, 1957, Respondent duly filed an answer denying the commission
of the unfair practices alleged.
Pursuant to due notice a hearing was held from January 14 through January 24,
1958, at Vernal and at Salt Lake City, Utah, before the duly designated Trial Ex-
aminer. The General Counsel and Respondent were represented by counsel; the
Union by an official thereof. Full opportunity was afforded all parties to be heard,
to examine and cross-examine witnesses, to ,introduce relevant evidence, to argue
orally at the conclusion of the taking of the testimony, and to file briefs on or before
March 3, 1958. Briefs have been.received from the General Counsel and from
Respondent's counsel which have been duly considered.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
American Gilsonite Company, a Delaware corporation, has its principal offices at
Salt Lake City, Utah. It is engaged in mining and refining gilsonite at Bonanza,
Utah, and at certain other places in the State of Colorado. During 1956, Respond-
ent sold and shipped from its Bonanza operations to points located outside the State
of Utah, gilsonite valued in excess of $50,000. During the same period, its out-of-
State purchases of equipment and supplies for its Bonanza operations amounted to
more than $500,000.
Upon the above undisputed facts, the Trial Examiner finds that during all times
material Respondent was, and now is, engaged in commerce within the meaning of
1 This term specifically includes counsel for the General Counsel appearing at the hearing.
AMERICAN GILSONITE COMPANY 1517
Section 2 ( 6) and (7) of the Act, and that it will effectuate the purposes of the Act
for the Board to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America, AFL-CIO, and its Local Union 4261, are labor
.organizations admitting to membership employees of Respondent.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The mining of gilsonite ore at Bonanza has been engaged in for many years by
Respondent and by its predecessor.
Respondent has had collective-bargaining contracts with the Union and its Local
Union 4261 since about 1949, and prior thereto had such contracts with the Mine,
Mill & Smelter Workers Union.
In 1955 Respondent entered into a collective-bargaining contract with the Union
.and Local Union 4261. This agreement, as extended by a supplemental agreement,
-dated July 10, 1956. was in full force and effect at all times material herein.
The agreement referred to immediately above contains a no-strike clause and also
a provision under which grievances are to be processed to final and binding arbitra-
tion. It likewise provides for a safety committee consisting of 6 members, 3 repre-
senting management and 3 representing the Union. This committee, among other
things, is obligated to formulate suggested changes in existing practices and rules
and recommend adoption of these proposed changes.
The Bonanza mine consists of three shafts varying in depth from 500 to 750
feet. The miners' skin, although smeared with a certain protective lotion before the
men enter the mine, is completely discolored after working a shift in the mine. Even
after a shower bath at the conclusion, of each shift, black pigments remain in the
miners' pores for a long time.
According to the record herein the mining of gilsonite ore is the third most haz-
-ardous occupation and gilsonite dust is a more explosive potential than coal dust.
In fact, in 1953 an explosion occurred at the Bonanza mine, resulting in the death
of eight employees. Likewise, in 1956, another explosion occurred but there were
no fatal mishaps. However, in March 1957,2 after extensive research, a new method
of mining was commenced involving the use of extremely high water pressure and
pumping, so that ore now mined at Bonanza is pumped in water 72 miles to Grand
Junction, Colorado. Because of this new method of mining operations and because
,of the beneficial achievements derived therefrom, Respondent won the 1957 "Un-
-derground Mine of the Year" award.
Although formal procedures for processing grievances are provided for in the col-
lective-bargaining contract, informal discussions were carried on between manage-
ment and the Union on various questions prior to and after the filing of written
grievances. Likewise, matters of safety, although not considered grievances under
the terms of the aforesaid contract, were nevertheless at times informally discussed
by the parties as though they were in fact grievances.
Sometime in February or March, Respondent, without prior consultation with the
Union, instituted aptitude tests for the newly created jobs of pump operators. These
tests were given by management exclusively. The men taking said tests were not
permitted to examine their papers after the tests had been taken, but were merely
informed whether or not they had passed. The Union, from the very inception
of the aptitude tests, opposed them mainly on the ground that they should be con-
ducted not solely by management, but by a neutral person and that the detailed
results of the tests be made available to both the Union and to the individuals
involved.
B. The pertinent facts
On Friday, March 22, Respondent laid off 22 pump operators, 5 of whom were
selected out of seniority on the ground that they had not passed the aptitude test 3
This action caused great concern among the members of the Local because they be-
lieved that their bargaining agreement with Respondent had been violated.
At about 2 p. m. on Sunday, March 24, Wendell Nash, the Local's vice president,
telephoned Mine Superintendent Paul Borden, and asked for a meeting that day.
2 Unless otherwise noted, all dates hereinafter mentioned refer to 1957.
8 Actually 1 of the 5 men laid off out of seniority had passed the test but was late in
filing his bid for the job.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Borden and Lester Williams,4 the mine foreman, met with Nash and Laurence
Gurr, the Local's president, that evening .5
At the aforesaid meeting, which lasted for about 2 hours, Nash stated that the
men were aroused because Respondent had violated the bargaining contract by the
March 22 layoff of 5 men out of seniority, adding that there was a strong possibility
that a strike would ensue because of this conduct. Borden replied that the five
men retained with less seniority than some of those laid off had been specially
trained for the jobs. Borden also pointed out that the bargaining contract did not
require that layoffs be made solely on the basis of seniority and therefore the men
had no proper basis for believing that Respondent had breached the contract.6
About 7:15 the following morning, March 25, John Baker, Respondent's assistant
production manager whose offices are in Salt Lake City, telephoned George Wilde,
the Union's staff representative under whose jurisdiction the Local is, at the latter's
Salt Lake City home, and said that the men were going to strike. Wilde thereupon
telephoned Gurr, who confirmed Baker' s statement . When Wilde asked Gurr why
the men were going to strike, Gurr replied, to quote Wilde, "Well, we have got a
bunch of grievances that have not been settled and they feel that the only way we
can settle those grievances is by having a showdown and striking." Wilde, being of
the opinion that "there should be no strike in order to settle grievances," suggested
that Gun request the men go to work and also to arrange a meeting with Respond-
ent. About 20 minutes later, Gurr telephoned Wilde and stated that the men were
refusing to go to work but that he had arranged a meeting with management for 4
o'clock that afternoon. Wilde advised Gurr that he would be in Bonanza at that
hour.
At about 7:30 a. in. Gurr, together with Lavern Long and George Wall, two mem-
bers of the Local's grievance committee, called at Borden's office and informed Bor-
den, "The men were not going to work until this thing is settled." 7 Gurr then re-
quested Borden to again talk "this thing" over with them. Borden replied that he
would not talk with them until the men went to work. As the Local's officials were
leaving Borden's office, the latter remarked, "It looks like we have a strike on our
hands," to which one of the officials retorted, "No, the men are all sick." When
Borden suggested that a doctor be called to ascertain what was ailing the men, an
official stated, "No, they are not sick. They are just not going to work until this
thing is settled."
Around 8:30 that morning, March 25, Gurr, Wall, and Long again called upon
Borden and requested that he discuss the matter. Borden again replied that he
would not comply with the request until the men went to work. Gurr then said
that he had asked the men to go to work but that they refused to do so.
In the afternoon Gurr again requested a meeting with Borden, who again de-
clined to do so until the men went to work.
About 3.30 Wilde arrived in Bonanza. As he began talking to Gurr, the latter
was handed a letter by a Respondent representative reading as follows:
LAWRENCE GURR, President,
Local Union No. 4261,
Bonanza, Utah.
DEAR MR. GuRR: You are advised that we will not attend a meeting today
with you as your refusal to work is completely illegal.
Unless work is resumed at once we will take whatever steps we deem
necessary.
PAUL BORDEN, Sllpt.
4 Also referred to in the record as Floyd Williams.
5 Nash requested the meeting after Gurr had informed him that the men were "hopped
up" _and threatened to strike because of the laying off of the five men out of seniority, the
use of the aptitude tests, and the recent remarks of Shift Foreman Frank Rigby to his
crew that it was useless for the men to file grievances because Respondent only threw
them into the wastebasket.
9 Section E of article VII provides :
In laying off an employee, rehiring an employee, transferring an employee or promot-
ing an employee, the Company shall take into consideration seniority and the qualifica-
tions of such employee, and the Company shall give preference to the employee with
the greater seniority, providing such employee is qualified to perform the work in a
capable manner. . . . _
7 Borden testified that by "this thing" he assumed Gurr was referring to the March 22
layoff ; that he based this assumption on what transpired at the meeting he had with Gurr
and Nash the previous evening; and that he knew of no other grievance about which the
men were then overly concerned.
-
AMERICAN GILSONITE COMPANY 1519
Wilde, Gurr, Nash, and Wall then went to Borden 's office where they were informed
that Borden would be busy the balance of the day and hence would be unable to
meet with Wilde and his associates . Thereupon , Wilde and the Local officials went
to the change or bath house, where they discussed the situation with the strikers
assembled there.
According to Wilde's testimony , at the meeting mentioned immediately above, the
men voted to abandon the strike , after discussing at considerable length Rigby's
remark that Respondent tore up all the Local's grievances and threw them into the
wastebasket .8 Thereupon , Wilde and the three named Local officials returned to
Borden's office . There Wilde advised Borden and four other managerial officials of
the men 's vote to abandon the strike and to return to work. Wilde requested that a
date be set for a discussion of certain grievances . The requested meeting was set
for March 28, with the understanding that the Local would present its grievances
in writing prior to the meeting.
Shortly after Wilde and his associates left Borden 's office, the afternoon shift,
which normally started at 3:30 p. in., went to work.
At about 7 o'clock the following day, March 26, Borden was informed by his
foremen that some men 9 who were scheduled to work on the March 25 afternoon
shift failed to do so. Upon receiving said information , Borden went to the change
house where , according to Borden's credible testimony , he had the following conver-
sation with Gurr:
I told him (Gurr ) I felt that the men had kind of let me down the
night before . . . . And I says, "We intend to do something about this." And he
says, "I advise you to leave well enough alone." And I says, "Well , Lawrence,
we are going to do something about this ." • And he made a statement generally
in these words , that, "Paul you are just trying to stir this thing all up again
and I advise you to leave it alone." And I believe I said , "Well, we are not
leaving it alone." 10
On March 26 and 27, Borden received reports from his foremen that five men ii
had been on the premises the previous afternoon and knew that the 3:30 shift
would work but nevertheless they did not do so. Borden also ascertained from the
same source and on the aforesaid dates that four other men had not worked on the
said shift . As to these 4, Borden 's information was that 3 of them had been excused
by their respective foremen at the beginning of the shift and the fourth had left
the premises and gone home not knowing that the men were going to work that
afternoon.
The meeting scheduled for March 28 was postponed until April 2, because of
the absence from Salt Lake City of Roy Nelson , Respondent's vice president and
general . thanager. After assembling the facts regarding the nine March 25 absentees,
Borden communicated the information to his superiors in. Salt Lake City. Upon
Nelson 's return to Salt Lake City on about March 29, he conferred with Respondent's
president , E. F. Goodner, regarding the nine men involved . Goodner and Nelson
decided to discharge Nash, Postma, Sims, Jaramillo , and Roloff . 12 They based their
8 It is significant to note that at no time during the entire day of March 25 did neither
Wilde ( International representative), Gurr ( president of Local ), Nash ( vice president of
Local and member of safety and grievance committees), nor Wall ( member of safety and
grievance committees ), tell the men that Rigby 's remark was contrary to the facts despite
the fact that each of them testified that they knew of no instance prior to March 25,
when Respondent refused to meet with any duly designated committee of the Union or of
the Local to discuss grievances or any bargainable matter. In addition , the men were not
informed on March 25 by any Union or Local official that Respondent had not breached
the bargaining contract by the March 22 layoff of certain men out of seniority.
9 Borden ascertained later in the day that nine men were involved.
w Gurr's version of this conversation varies somewhat with that of Borden ' s. Gurr testi-
fied that Borden specifically stated that five men had failed to go to work on the March 25
afternoon shift In the light of the entire record in the case and from his observation of
Gurr and Borden while they were on the witness stand , the Trial Examiner finds Borden's
entire testimony to be substantially in accord with the facts and Gurr's entire testimony
to be in accord with what he thought would be more advantageous to his union Accord-
ingly, when Borden's and Gurr's testimony conflict the Trial Examiner accepts as substan-
tially correct Borden's testimony -
11 Namely , Nash, Joseph Postma, Virgil Sims, Benny Jaramillo , and Adam Roloff (also
referred to in the record as Rowloff). -
12 These five men reported for work on March 26 and worked until their discharge
on April 2
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision solely upon the information submitted by Borden. Goodner and Nelson,
however, concluded that their decision should not be announced until the scheduled
April 2 meeting because, as Nelson credibly testified:
We felt that the local union leadership was irresponsible. We had been
informed that that leadership had said that if any further action was taken,
disciplinary action was taken, that there would be trouble. We wish to avoid
another strike. So we felt that the best way to handle the situation was to
handle it in the scheduled meeting, where we would be quite certain that
[Wilde] a responsible international representative would be present. And
where we also could try to direct any subsequent action to our disciplinary
- measure into the channels that were open to us with our contract, that is,
arbitration if necessary.
Goodner and Nelson also decided prior to April 2 not to take any disciplinary
action as to the other four men because they relied on the following facts submitted
to them by Borden: Frank McKnight had left the premises without knowing
that his shift was going to work that afternoon; that Vernon Keele and George
Brundage left the premises only after they had informed their foreman that they
were going to Price, Utah, to seek other employment; and that employee Price,
although ready to work, was not permitted to do so by his foreman because
Price had been drinking and was in no condition to work.
On April 2 Wilde and several Local officials met with Nelson, Borden, and
other Respondent officials in Bonanza and discussed at great length the grievances
submitted by the Union on about March 27. Agreement, in some cases partial,
was reached with respect to them. Respondent's representatives then announced
that it had been decided that the five men who did not work on March 25,13
had no.legitimate excuse, as far as Respondent was concerned, for not going to
work after the Local had called off the strike. Nash was then asked by a
Respondent official why he had not gone to work on March 25. He replied, to
quote from the credited testimony of Earl Owen, Respondent's secretary-treasurer,
"he was drunk and that he didn't want to go back to work and so he went home.
And he said, `If I want to get drunk, it is my own business and it isn't any business
.of the company. So I went home. I was drunk."' When Postma was asked by
a Respondent official for his reason for not working on March 25, he replied he
had been drinking so he decided to go home. When Nash and Postma were asked
by a Respondent official if they knew why Sims, Jaramillo, and Roloff did not
work that particular evening, they replied that the said three men had been drinking
-that afternoon and were in no condition to work in the mine. Wilde then asked
-that management reconsider the discharge decision. The union representatives were
then asked to leave the meeting while the management representatives discussed
the request. Upon returning to the conference room, Wilde and his associates were
advised by Nelson that the decision stood and the five men were to be discharged.
Nelson then suggested that, since a representative of the International was present
the question of whether Respondent's discharge decision was proper could, if the
Union felt aggrieved, go directly to arbitration. After Wilde stated that he thought
that the only reason why the men were fired was to make an example of them,
the meeting broke up.
Upon the conclusion of the above-referred-to conference, Wilde, Gurr, Nash,
Postma, and Wall, all of whom had attended the conference, went to the change
-house where Wilde told the men present that the seven union grievances had been
discussed with management and they had been settled in such a manner that the
men "could live with them" even "though we had not obtained full satisfaction."
Wilde then stated that Respondent had decided to discharge Nash, Sims, Postma,
Roloff, and Jaramillo. The men then asked Wilde for his recommendation with
respect to what to do about the discharges. He stated that the Local should
"proceed by contract to settle" the matter; that is to say, arbitrate the legality of
Respondent's action. After a lengthy discussion among the men, Wilde stated
that the men should make up' their minds and advise him of the decision. Wilde
and Gurr then left the meeting. After further discussion the men voted to strike.
As the shifts were changing at 11 o'clock that night, April 2, Wall and George
Long, the Local's treasurer and head 'steward, informed the men on those shifts
of the strike action taken by the day crew. The night shift crew did not go to work
that night and the mine was shut down until April 17.
13 Namely, Nash, Postma, Sims, Jaram1llo , and Roloff.
AMERICAN GILSONITE COMPANY 1521
Under date of April 4, Goodner sent a copy of the following letter to each
employee:
Last Tuesday we met with union representatives and studied seven or eight
problems which the union asked us to consider. We agreed to take the best
action we could to solve all of these problems to the satisfaction of those
present.
We then reminded the union that our company had signed a contract with the
union which provided a method for settling disputes. This same method is
used under more than three-fourths of all the union agreements signed in
America. There is no reason at all that the method that works for three-
fourths of the unions and companies should not work at our company and
with our union.
Last week, our union leaders and most of our day shift people threw this
procedure and our entire agreement out the window and refused to work
rather than submit some complaints about lay-offs to the grievance procedure.
During this illegal walkout we met with the union, and it was agreed-and
agreed unanimously as far as we could see-that the men would report back
to work.
Immediately after this agreement five men deliberately decided not to go
to work, and they left the area in two autos. Three other men failed to
report for work. These three men apparently did not know that work had
been resumed and so we took no action in their case.
According to several witnesses, Mr. Roloff challenged the company to fire
him and publicly said he was not going to work just to see if the company
would fire him. No gone questions these facts.
Mr. Nash and Mr. Postma say they knew of the agreement to return to
work: Mr. Nash was one of the union leaders who arranged the agreement.
They both stated to all present on Tuesday that they deliberately left and did
not report to work. As their excuse for not reporting, they both explained
that they were drunk. They also explained that they thought Mr. Sims and
Mr. Jaramillo were also drunk. Mr. Nash further stated that he went on
a drinking spree that night and might get drunk again at any time. He said
that if the company was going to ask him not to-get drunk, we should make out
his check then and there.
After careful consideration of all the facts and after offering to listen to any
further facts and offering to submit the matter to arbitration as provided in our
agreement with our employees, we told the union we had decided that the
conduct of Roloff, Nash, Postma, Sims and Jaramillo was cause for discharge.
The union said that if these five alone should be fired, then all men on the
day shift should also be fired. We said no to this suggestion because we were
not certain that all day shift men wanted to violate our contract by striking.
We felt that some of the men would have preferred to work and submit the
complaints to grievance or to arbitration as provided in the contract.
As you know, our union agreement also promises on behalf of each employee
that the employees will not strike or engage in a work stoppage or slowdown.
This promise has been broken twice in the last few days. The company is
now making arrangements to see that this does not happen again.
On April 6, the Local held a meeting and the membership voted to terminate the
strike and return to work. On the same day Wilde informed both Borden and
Nelson of the Local's action.
Under date of April- 12, Goodner sent the following letter and enclosure therein
mentioned to each employee:
It has come to our attention that the contents of the proposed Agreement,14
which the Company has offered to settle the illegal strike, were not entirely
understood by all concerned. Therefore, we are enclosing a copy of this Agree-
ment so you can read it to clarify any misunderstanding you might have.
We think this Agreement is fair and reasonable and wish to emphasize that
all previous rights will be restored to former employees re-employed if this
Agreement is signed . There are two changes in the enclosed Agreement which
is different than the one previously presented to you. Two sentences were
added in the first paragraph for clarification.
u This proposed agreement was handed to Wilde at a meeting which he had with repre-
sentatives , of Respondent in Salt Lake City on April 9.-
487926-59-vol . 121=97 , , -1 , r
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PROPOSAL TO SETTLE THE ILLEGAL STRIKE AT BONANZA
The Company has carefully studied the problems resulting from the illegal
action of its employees in the past few weeks in violating their Labor Agreement.
The. Company cannot condone or tolerate such illegal action on the part of its
employees and in lieu of settling this matter in court or before the N. L. R. B.,
it,will agree to the following proposals:
, 1. The Company will re-employ those employees who, in its sole judg-
ment, will and have abided by the convenants as set forth in Articles I
and XIII of the Agreement, dated July 1, 1955, and as amended, as rapidly
as jobs are available. It is the intent hereunder that former employees
approved by the Company hereunder for re-employment shall be put back
to work in the order of seniority to the extent that jobs are available. It
is further understood that the number of former employees not approved
by the • Company for reemployment hereunder shall not exceed 15.
2. The Agreement between the Company and the United Steelworkers
of America for and on behalf of its Local Union No. 4261, dated July 1,
1955, as amended July 10, 1956, shall be reinstated as of the date of this
Agreement. It is expressly understood, however, that none of the pro-
visions of said Agreement shall be available to any former employees not
re-employed as a result of this Agreement.
3. Those employees re-employed under this Agreement will have all
rights restored as provided by the Agreement of July 1, 1955, as amended.
Accepted and approved this -------- day of --------, 1957.
COMPANY:
B
Its
By------------------------------------------
Its
UNION:
United Steelworkers of America
for and On Behalf of Its Local
Union No. 4261:
By-------------------------
Its
By-------------------------.
Its
Local Union No. 4261:
By-------------------------
I is -
By-------------------------
Its
Between April 2 and 17 a series of meetings between Respondent and union
representatives was held in order to settle the strike, without avail.
On April 17 Respondent began recalling the men. Each person recalled was told
by Borden, before being put to work: I ,,
You quit your job on April 3, 1957, and you, are now being hired by the
company as a new employee.
The contributions you had made to the pension plan will be refunded to
you as soon as the amount can be calculated and the check mailed to you by
the insurance company.
Nelson, either on or immediately prior to April 17, had instructed Borden not to
reemploy Gun, Wall, and Long because, in his opinion, they were responsible for
the April 2 strike and Borden was also instructed not to reemploy any person who,
in Borden's opinion, was "sub-standard" or a poor worker.
Under date of April 25. Goodner wrote each, employee- as follows:
TO ALL', EMPLOYEES-BONANZA &' CRAIG: -
Co npariy officials,have'studied the problems created by the two illegal strikes
at Bonanza. We have discussed th'ese.'problems with Union representatives
several times. We have been unable to reach an agreement with the Union
on this matter.. As you recall, after the first illegal strike we discharged-5
striking employees because they 'had deliberately refused to return to work
after the Union and the Company had agreed to resume work,' We urged the
Union to submit these 5 cases to arbitration : Our suggestion that the dis-
AMERICAN GILSONITE COMPANY 1523
charges be arbitrated was not accepted. Another illegal strike was begun and
our agreement with the Union was breached again. Obviously, the 5 dis-•
charges must now stand.
All employees who took part in the second illegal strike thereby quit their
employment with the Company. If the Union or any employee questions this
fact, then we inform all concerned that all participating employees were termi-
nated by the Company for engaging in an illegal strike in violation of our
agreement. We have been rehiring employees as they are needed and as they
have been willing to return to work. Any former employee who is thus rehired
shall be deemed a new employee under Article VII of the agreement as of the,
date of his re-employment.
Employees who have broken the contract cannot take advantage of the pro-
visions of the agreement in order to avoid discipline or discharge for their
activities in connection with the breaking of the agreement before their re-em-
ployment. They cannot ignore the contract when it suits them and then claim
its protection when it is to their advantage to do so. We will not accept
grievances protesting the action of the Company in respect to any discipline or
decision concerning the breach of contract strike activity.
It is a basic rule of law that the Company need not perform according to
the contract if the other party refuses in a material respect to fulfill its obligation
under, the contract. In fact, when Article III, the No Strike Clause, was
breached, a material part of the contract was breached and the contract was
thereby terminated by the Union. We have decided to forgive this Union
breach of contract and termination of the agreement and as of April 29, 1957
the Company will voluntarily reinstate the agreement. In addition, the Com-
pany will restore holiday, vacation, pension and insurance rights based upon
total Company service, including service prior to the illegal strike.
C. Concluding findings
Throughout the hearing and in his brief the General Counsel contended that the
March 25 strike was not only an unfair labor practice strike but was also a strike
protected by Section '502 of the Act. In support of these contentions, the General
Counsel argued that "Respondent's attitude toward the Union was one of animosity
in that it desired a submissive and docile union as opposed to a militant organiza-
tion . . . that in the handling of grievances, safety matters, and disagreements,
the Company pursued a course which [did] violence to every sense of fair dealing
by proposing adjustments which [tended] to humiliate and punish the Union and
its members." The General Counsel argued in support of the aforementioned con-
tentions that Respondent was antiunion in that it, among other things, "fostered a
policy of openly discriminating against employees who displayed a strong union or
militant attitude even though such activity occurred years ago."
The credible evidence, as epitomized in section III, B, above, clearly demon-
strates, and the Trial Examiner finds, that the March 25 walkout was not protected
,by Section 502 of the Act. At no time prior to, or during that strike, was the
question of the' employees' concern over the dangerous condition of the mine men-
tioned as a cause for the men refusing to work on March 25. The strike, the credible
evidence discloses, was called solely because of Rigby's remark and the March 22
layoffs.
The General Counsel points to "the following examples [as being] highly signifi-
cant" of Respondent's antiunion attitude:
a. Fletcher, who has not been recalled, testified without contradiction that
foreman George Collins in November of 1956 warned him, "It's just little re-
marks dropped here and there that can cause agitation. And I believe when
you say something like that, the men listen to you." On another occasion, about
the first of the year 1957, foreman Collins said-to Fletcher, "Ever since we have
known you out here, I have felt you have had qualities of leadership and I think
Floyd Williams (mine foreman) has had the same thing in mind.. . We
1 don't only once in a while have fellows like you come along. . But you
have one fault..'. . You talk too much. You have too much influence on the
-men." '
b. Mecham, who was refused' reinstatement,' testified without contradiction
that when he was interviewed with regard to reemployment on April 25, 1957,
foreman Lenartz said that if he had not' joined the strike of April 2nd, he would
have continued to work. Lenartz likewise said to Mecham on this occasion,
"When they tried Nate Jones [a foreman] for an unfair labor practice, you was
the only man that ever spoke'up down there." "
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Elmer Collins, who worked continuously for the Company for approxi-
mately 30 years without criticism, was discharged and not recalled. Wilde testi-
fied without contradiction that when he asked Nelson why Collins had not been
recalled, Nelson replied, "Well, he carried a rubber hose on the picket line."
Nelson acknowledged that the foregoing statement referred to an incident that
took place on a picket line in 1953.15
d. All Union officers, with one exception, and all members of the Grievance
and Safety Committees were discharged or refused reinstatement.
The evidence further points out that employees who entered protests against
the Company were discharged or refused reinstatement . The following are
examples:
a. Timothy, who was refused reinstatement , was involved in a situation in
the early part of 1957 where foreman Jones had threatened to hold back a day's
pay because Timothy had run out of gas while driving a truck on Company busi-
ness. Jones subsequently appeared before the Grievance Committee and was
taxed with this threat.
b. Justice complained to foreman Jones in October 1956 about the lack of
any heat in the garage which was being used as the machine shop. This com-
plaint was brought up by Jones on April 19, 1957, when Justice inquired about
reinstatement. Justice filed three grievances with the Company on March 28,
1957. He further testified without contradiction that when the other mechanic
was unable to work because of an operation , in addition to his regular shift he
had to work from about 5:00 p. in. to 6:45 a. in. the following morning without
food. Since he was eating and sleeping in the Company bunkhouse, he requested
that Jones make arrangements with the Company so that he could obtain a
meal during the night. Jones showed a complete lack of sympathy and did
nothing about it.
c. Locke complained to Borden in January 1957 that there was no heat in
the old garage being used as a machine and welding shop. Following the con-
struction of a new work shop, Locke again complained to the Company because
there was no screen between his work and the arc light thrown off by the welders.
d. Besst, who was shop steward, was hired as a B electrician and was in-
formed by Jones that when he did A electrician work, he would receive A
electrician pay. He testified without contradiction that on occasion he did A
electrician work, marked his time card as such, yet never received A electrician
pay. A grievance was filed.
e. Wall, a member of both the Grievance and Safety Committees, filed a
grievance which was discussed briefly at the meeting of April 2nd. The attitude
of the Company toward grievances filed by the workers is exemplified in the
uncontradicted testimony of Wilde, Postma, and Nash as to a statement made
by Owen concerning this grievance.'6
f. Long testified without contradiction that after he was discharged, he was
told by Williams that he had been over-safety cautious . Long was head steward
and was on the Grievance Committee.
g. Respondent admits that Gurr, Long and Wall were refused reinstatement
because of their union activity.
Upon the entire record in the case , the Trial Examiner is convinced , and finds,
that the General Counsel's contentions that the March 25 strike was an unfair
Is At Wilde's request, Nelson and Wilde met on or about May 10 to discuss the pos-
sibility of reinstating Collins. According to the credited testimony of Nelson, the follow-
ing transpired at that meeting :
Well, Mr Wilde presented the case. He pointed out that Mr Collins was Impaired
in his walking, that is, he had a wooden leg, he had gotten along to the age where he
was finding it very difficult to obtain work, and that he had, in Mr. Wilde's opinion,
absolutely no part in the strike action that was taken, and he felt that we should
reconsider his case. I told Mr. Wilde In the conversation that Mr. Collins had always
been quite a contrast-presented a contrast in his personality to me personally. When
I would meet him on the job he would be a perfect gentleman. The next thing we
would hear about him is that he was swinging a rubber hose In some lady's face in
Craig. The next time we would see him, he would be perfectly humble, interested In
his work The next thing you would hear about him is saying derogatory remarks
about, the company or about the foremen or he was In a fight with somebody in a
dance hall. •
le The grievance concerned shift foremen going Into the change house and giving em-
ployees some orders with respect to their work while they were getting ready to go to work.
AMERICAN GILSONITE COMPANY 1525
labor practice strike or was a strike protected by Section 502, are not supported by
the record . The Trial Examiner further finds that the General Counsel's con-
tention that Respondent is, and during all times material was , antiunion, is not
supported by the credited evidence . In fact the record is completely barren of
any substantial or credible evidence of any union hostility on Respondent 's part.17
This finding is buttressed , among other things , by the fact that Respondent (1) for
upwards of 10 years never refused to recognize or deal with the collective -bargaining
representative of any of its employees ; (2) never refused to discuss a grievance
with the Union or the Local; and ( 3) had written contractual bargaining relations
with the Union for upwards of 8 years.
The General Counsel, relying on such cases as Carey Salt Co., 70 NLRB 1099;
N. L. R. B . v. Wallicks and Schwalm Company, et al., 198 F. 2d 477 (C. A. 3);
N. L. R. B . v. E. A. Laboratories, Inc., 188 F. 2d 885 (C. A. 2); N. L. R. B. v. Ala-
bama Marble Company, 185 F . 2d 1022 (C. A. 5), maintained that Respondent
condoned the March 25 actions of Sims, Postma, Roloff , Jaramillo , and Nash by
settling the strike with the Union and permitting the men to work on and after March
26, and hence their subsequent discharges were violative of the Act. '
The above -named five men were not discharged because of their activities prior
to, or during ,- the' strike as were the -persons referred to in the cases cited above.
The reasons why the five men here involved were discharged , as succinctly set
forth in Respondent 's brief, are:
Postma, a union committeeman , was present at the meeting of the men when
they voted to return to work . He had voted against going back to work
and although he knew the others in his shift were going to work , he didn't
feel like it, and didn 't. He returned to the commissary to drink beer. Later,
in company with Jaramillo and Sims, he left the mine without notifying his
supervisor or any Company representative that he did not intend to work.
Nash , the union vice president , also attended the meeting on March 25,
at which the men voted to ' go back to work. He then went home without
notifying his foreman or any other Company representative.
Sims attended the meeting at which the men voted to return to work and
he voted against returning .. He did not request permission of his supervisor
to be excused from work.
Jaramillo attended the meeting at which the men voted to go back to work,
then he went back to the commissary to drink beer . He later left without
notifying his foreman , having decided that he would rather drink beer than
work. Since he had voted against returning to work , he decided he wouldn't
work regardless of what the others planned to do. He, Postma and Sims
departed with a case of beer.
Roloff was at the mine on March 25 , and knew the men' had voted to go
back to work . He said that he had decided that he had been drinking too
much so he told his supervisor , Art Morgan, that he couldn 't work. His
supervisor did not excuse him and warned him that he had better stay around.
As he was leaving he saw Nate Jones, a department supervisor , in company
with several employees . Roloff shouted across the street to Jones either,
"Well, Art Morgan said he was going to fire me, but I am going home, because
I don't think he will ," or, "Art Morgan said he was going to fire me and I'm
going home to see if he can."
In the light of the entire record , coupled with the fact that Borden , Nelson,
Williams, and Owen impressed the Trial Examiner as being persons who are
careful with the truth and meticulous in not enlarging their respective testimony
beyond their actual memory of what occurred , the Trial Examiner finds that Sims,
Nash , Jaramillo , Roloff, and Postma were discharged for cause. The Trial Examiner
further finds that the Union memberships and activities of the aforesaid five men
played no part in Respondent 's determination to terminate their employment.
When the Union called off the strike, Respondent had every reason to believe
that all the men would return to work . When the five refused, Respondent was
then in a position to discipline them in whatever manner it deemed best.
Since the record clearly establishes , as Respondent and the General Counsel
concede, that the April 2 strike was caused solely by the discharge of the five men
17 Obviously, Rigby's aforementioned statement tends to show union antipathy on Re-
spondent's part. But, as found herein; that statement was entirely false. Furthermore,
when Borden heard of Rigby's remarks, he called Rigby into his office and, after Rigby
admitted that he had made the statement, Borden requested and received'his immediate
resignation.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and since it has been found that their discharges were not violative of the Act,
it follows that said strike was in violation of the contract and hence illegal and
unprotected.
Clearly the conduct of Gurr , Wall, and Long in connection with the strike of
April 2 provided ample justification for Respondent's refusal to reinstate them on
and after April 17.
Gurr was president of the Local . Prior to the strike Respondent had recognized
his ability by offering him a foreman 's job , and then a job as a jigger boss when
he decided he did not wish to be a foreman . 18 Gurr, as the leader of the Local,
obviously had the responsibility of fully informing the membership with respect to
the issues and of endeavoring to persuade the membership to carry out the terms
of the collective-bargaining agreement. On April 2, however, he stood by at a
meeting called to discuss whether the men should strike. He did not'inform them
of the merits of the dispute or that the strike would be a breach of contract. He
gave no support to Wilde, who admittedly had no control over the local membership,
but who, nonetheless , recommended to the membership that the discharges should
be arbitrated When Gurr and Wilde saw that a strike vote was to be taken, they
walked out of the meeting.
Long, the treasurer of the Local , remained at the April 2 meeting and did nothing
to persuade the men to carry out the terms of the collective -bargaining agreement.
Instead, he told the men that Respondent was adding fuel to the fire and that if
5 men were fired , the other 4 should be fired . He then took the strike vote. Long
then arranged with Wall that both of them would notify the swing shift and the
graveyard shift of the strike . At this meeting, at 11 p. in. on April 2, the men
were not told of Respondent 's willingness to accept the Union 's safety recom-
mendations ; to arbitrate the discharge of the five men; were not told that they
should work; nor told that a strike would violate the collective -bargaining agreement.
Instead , Long told the men the Union could not get mixed up in the affair, but if
the fellows wanted to act on their own that was their privilege . In an attempt
to insulate the Union from the consequences of encouraging an 'illegal strike,
Wall, who was not an officer of the Union , took over as spokesman at the meeting.
Clearly union leaders Gurr and Long not only failed in their duty to the union
members to inform them fully and fairly; but did so with full knowledge that an
unlawful strike would follow as a direct consequence thereof.
The record indicates , as evidenced by the questions propounded by Respondent's
counsel , that Respondent was aware of Gurr 's, Long's, and Wall's above -described
April 2 activities prior to April 17.
The complaint alleged that Norman Fletcher was discriminatorily refused reem-
ployment. Fletchei testified , and the Trial Examiner finds, that he knew , that com-
mencing on April 17 , the men were being recalled but he did not report to the mine
because he was "at the bottom of the seniority list" as of April 2 , and that he took
it for granted that Respondent would recall him if, and when , there was an opening
for him. Fletcher was not rehired because Respondent believed in good faith that
Fletcher was not interested in reemployment because he did not personally apply
for reemployment.
As to Walter Besst , the complaint alleged that he was discriminatorily refused
reinstatement . The credible evidence is clear that Besst quit his job with Respond-
ent after the April 2 strike to accept work elsewhere.
The complaint also alleged that Charlie Timothy, Weston Justice , Joseph
Mecham , Lewis P. Locke, and Elmer Collins were likewise refused reemployment
for discriminatory reasons. It would serve no useful purpose to here set forth the
voluminous evidence adduced at the-hearing with respect to Respondent's reasons
for not rehiring these men on and after April 17, for said evidence leads to the in-
escapable conclusion that Respondent's refusal to rehire Timothy, Justice , Mecham,
Locke, and Collins was not discriminatorily motivated.
The complaint also alleged a refusal by Respondent to process grievances on
March 25. Borden did refuse to discuss grievances with the union representatives
on that date until the men voted to terminate the illegal strike. When the strike
was called off he conferred with Wilde and certain Local officials on March 25.
It is well settled that an employer may refuse to discuss anything with union repre-
sentatives while an illegal strike is in progress.19
Is This is an indication that men were not discriminated against because they held
union offices . The lack of union animus on Respondent's part is also evidenced by the
fact that Foreman Lenartz was a former president of the Local.
19 See, for example, California Cotton Cooperative Association , Ltd, 110 NLRB 1494,
1498 ; United Elastic Corporation, 84 NLRB 768 ; Valley City Furniture Company, 110
NLRB 1589, 1592; Phelps Dodge Copper Products Corporation, 101 NLRB 360 , 367, 369.
CANLAKE PETROLEUM CORPORATION 1527
The complaint further alleged that Respondent unilaterally instituted aptitude
tests for promotion to higher paid jobs, and refused to consult with the Union with
respect thereto. The record establishes that Respondent, after the Union had pro-
tested, consulted with the Union on this subject, and agreed that a union committee
be appointed to check the fairness of the tests, that each employee be shown the re-
sults of his test, and that Respondent would not necessarily require that the job be
given to the man with the highest test rating.
The allegations of the complaint that the reemployment conditions set forth in
Respondent's April 25 letter to the employees violated the Act is bottomed on the
false premise that the April 2 strike was a protected strike. Since the credible evi-
dence discloses otherwise, it follows that said allegations must fall.
Upon the record as a whole, the Trial Examiner finds that the allegations of the
complaint that Respondent engaged in certain acts and conduct violative of Section
8 (a) (1) and (3) are not supported by substantial evidence. Accordingly, the
Trial Examiner recommends that the allegations of the complaint that Respondent
violated Section 8 (a) (1) and (3) of the Act be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. American Gilsonite Company, Salt Lake City, Utah, is engaged in, and during
all times material herein was engaged in, commerce within the meaning of Section 2
( 6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, and its Local Union 4261, are
labor organizations, within the meaning of Section 2 (5) of the Act.
3. The allegations of the complaint that Respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8 (a) (1) and (3)
of the Act, have not been sustained by substantial evidence.
[Recommendations omitted from publication.]
Canlake Petroleum Corporation and International Association
of Machinists, AFL-CIO. Case No. 3-CA-1052. October 27,
1958
DECISION AND ORDER
On April 15, 1958, Trial Examiner Ralph Winkler issued his Inter-
mediate Report, in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1), (2), (3), and (5) of the
Act, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondents filed exceptions
to the Intermediate Report and a supporting brief.
'The Board i has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed 2
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
this case,3 and hereby adopts the findings, conclusions, and recom-
? Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Leedom and
Members Bean and Jenkins].
2 We have carefully examined the record and find no merit. in the Respondent's allega-
tions of bias and prejudice on the part of the Trial Examiner
8 We hereby deny the Respondent's request for oral argument as the record and brief, In
our opinion, adequately present the issues and positions of the parties.
121 NLRB No. 200.