Bear Creek Construction Co.

National Labor Relations Board - Board Decisions

Feb 27, 1962

135 N.L.R.B. 1285 (N.L.R.B. 1962)

BEAR CREEK CONSTRUCTION CO. - 1285
Bear Creek Construction Co. and United Brotherhood of Car-
penters and Joiners of America, Local 2274, AFL-CIO
United Mine Workers of America , District 50, and its Local
Union No . 14693 and United Brotherhood of Carpenters and
Joiners of America, Local 2274, AFL-CIO. Cases Nos. 6-CA-
2227 and 6-CB-817. February 27, 1962
DECISION AND ORDER
On October 30, 1961, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceedings, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the Respondent Bear
'Creek Construction Co., hereinafter referred to as the Company, and
Respondent United Mine Workers of America, District 50, and its
Local Union No. 14693, hereinafter referred to as Respondent Unions,
filed exceptions to the Intermediate Report and briefs in support
thereof. The General Counsel filed a brief in support of the Inter-
mediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
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 In-
termediate Report, the exceptions and briefs, and the entire record
in the case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
We agree with the Trial Examiner, for the reasons fully set forth
in the Intermediate Report, that Respondent Company violated Sec-
tion 8(a) (1), (2), and (3) of the Act, and that Respondent Unions
violated Section 8(b) (1) (A) and (2) of the Act. Like the Trial Ex-
aminer, we reject Respondents' contentions that the provisions of
Section 8 (f) 9 afford them a defense in this case. Section 8(f), where
'As the record , exceptions , and briefs adequately present the issues and the positions
of the parties , the Respondent Company's request for oral argument Is denied.
2 We modify the Recommended Order by limiting it to the Washington County , Pennsyl-
vania, project of Respondent Company.
8 Section 8(f) provides , in pertinent part: "It shall not be an unfair labor practice
under subsections ( a) and ( b) of this section for an employer engaged primarily In the
building and construction industry to make an agreement covering employees engaged (or
who, upon their employment , will be engaged) in the building and construction industry
with a labor organization of which building and construction employees are members
(not established , maintained , or assisted by any action defined in section 8 ( a) of this
Act as an unfair labor practice ) because ( 1) the majority status of such labor organiza-
135 NLRB No. 132.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applicable, permits prehire agreements and does not require a labor
organization to establish majority status prior to the entering of such
an agreement. However, Section 8(f), by its express terms, does not
validate prehire agreements where the union has been "established,
maintained, or assisted by any action defined in Section 8 (a) of this
Act as an unfair labor practice." In short, the validity which Section
8(f) gives to prehire agreements is removed where it is shown that
the union has been illegally "established, maintained, or assisted" by
the employer.
Here, it has been clearly established that the Respondent Company,
as fully described by the Trial Examiner, unlawfully assisted Re-
spondent Unions in obtaining membership applications and checkoff
authorization cards .4 By such acts of assistance Respondent Com-
pany violated Section 8 (a) (1), (2), and (3) of the Act. And because
the prehire agreement between Respondents was an agreement be-
tween an employer and illegally assisted unions that contract is not
validated by Section 8 (f) of the Act. Moreover, in the circumstances,
by entering into and maintaining such a contract, Respondent Com-
pany violated Section 8 (a) (1), (2), and (3) of the Act, and Respond-
ent Unions violated Section 8(b) (2) and 8(b) (1) (A).
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
. A. Respondent Company, Bear Creek Construction Co., its officers,
agents, successors, or assigns, shall :
1. Cease and desist from :
(a) Recognizing and dealing with United Mine Workers of Amer-
ica, District 50, or its Local Union No. 14693, or any successors thereto,
as collective-bargaining representative of any of its employees at its
Washington County, Pennsylvania, project for the purpose of dealing
with the Company concerning grievances, labor disputes, wages, rates
tion has not been established under the provisions of section 9 of this Act prior to the
making of such agreement, or (2) such agreement requires as a condition of employment,
membership in such labor organization after the seventh day following the beginning of
such employment or the effective date of the agreement, whichever is later . . . .
* In this regard we particularly note that Respondent Company's officials solicited em-
ployee signatures to the Respondent Unions' membership application and checkoff authori-
zation cards during the hiring process ; that more than half of the 29 employees employed
before November 7, 1960, executed the above-described cards as a result of the Company's
solicitation ; and that an atmosphere of urgency attended the solicitations implying that
immediate execution of said cards was a condition of employment Indeed, all but 2 of
the 24 employees who testified in this proceeding signed the membership application and
checkoff authorization cards the same day they were requested to do so by the company
officials. Moreover, we note that there is no showing in the record that the employees
solicited by the Company's officials were ever notified that they were not required join
the Union for at least 7 days following their employment, or that the contract with the
Respondent Union required only that they join the Union 16 days after their employment.
BEAR CREEK CONSTRUCTION CO. 1287
of pay, hours of employment, or other conditions of employment,
unless and until Respondent Unions shall have demonstrated their
exclusive majority representative status pursuant to a Board-conduct-
ed election among said employees of the Respondent Company.
(b) Performing or giving effect to its agreement of November 7,
1960, with Respondent Unions relating to its Washington County,.
Pennsylvania, project, or to any modification, extension, supplement,
or renewal thereof, or to any other contract, agreement, or understand-
ing with respect to its Washington County, Pennsylvania, project,
entered into with Respondent Unions relating to grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions.
of employment, unless and until United Mine Workers of America,
District 50, and its Local Union No. 14693, shall have demonstrated
their exclusive majority representative status pursuant to a Board-
conducted election among the said employees of Respondent Com-
pany, provided, however, that nothing herein shall be construed to^
require the Company to vary any substantive provisions of such agree-
ment or to prejudice the assertion by the employees of any rights
which they may have thereunder.
(c) Soliciting checkoff authorizations for, or membership in, the
Respondent Unions by threats or otherwise, interrogating employees
concerning their union membership or activities, or in any like or-
related manner interfering with, restraining, or coercing employees
at its Washington County, Pennsylvania, project, in the exercise of
their rights to self-organization, to form labor organizations, to join
or assist any labor organization, to bargain collectively through rep-
resentatives of their own choosing, and, to engage in other concerted
activities for the purpose of collective bargaining or mutual aid or
protection, or to refrain from any or all such activities, except to the
extent that such rights may be affected by, an agreement requiring-
membership in a labor organization as a condition of employment, as
authorized in Section 8 (f) of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act:
(a) Withdraw and withhold all recognition from United Mine
Workers of America, District 50, and its Local Union No. 14693, as a
representative of its employees at its Washington County, Pennsyl-
vania, project for the purpose of dealing with the Company concern-
ing grievances, labor disputes, wages, rates of -pay, hours of employ-
ment, or any other condition of employment, unless and until said
Respondent Unions shall have demonstrated their exclusive majority
representative status pursuant to a Board-conducted election among
Respondent Company's employees.
(b) Jointly and severally with the said Respondent Unions reim-
burse the above-described employees for any initiation fees, dues, or
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other moneys paid or checked off as a condition of employment pur-
suant to the agreement of November 7,1960, or any extension, renewal,
modification, or supplements thereof, or any agreement superseding it.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all records and reports necessary
to analyze the amount of moneys due under the terms of this Order.
(d) Post in and around its Washington County, Pennsylvania,
project copies of the notice attached hereto marked "Appendix A." 6
Copies of said notice, to be furnished by the Regional Director for the
Sixth Region, shall, after being duly signed by the Company, 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 its employees are customarily posted. Rea-
sonable steps shall be taken by the Company to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Post at the same places, and under the same conditions as set
forth in (d) above, and as soon as they are forwarded by the Regional
Director, copies of the Respondent Unions' notice herein marked
"Appendix B." I
(f) Notify the Regional Director for the Sixth Region, in writing,
within, 10 days from the date of this Order, what steps it has taken to
comply herewith.
B. The Respondent Unions, United Mine Workers of America,
District 50, and its Local Union No. 14693, its officers, representatives,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Performing or giving effect to its agreement of November 7,
1960, with the Respondent Company relating to its Washington
County, Pennsylvania, project, or to any modification, extension, sup-
plement, or renewal thereof, or to any other contract, agreement, or
understanding entered into with Respondent Company relating to
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until United Mine
Workers of America, District 50, and its Local Union No. 14693 shall
have demonstrated their exclusive majority representative status pur-
suant to a Board-conducted election among the employees of said Re-
spondent Company at its Washington County, Pennsylvania, project,
provided, however, that nothing herein shall be construed to require
the Company to vary any substantive provisions of such agreement or
to prejudice the assertion by employees of any rights which they may
have thereunder.
Is
In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
See footnote 5.
BEAR CREEK CONSTRUCTION CO. 1289'
(b) Acting as exclusive bargaining representative for any of the
above-described employees of Respondent Bear Creek Construction
Co., for the purpose of dealing with said Company concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment unless and until said Respondent
Unions shall have demonstrated their exclusive majority representa-
tive status pursuant to a Board-conducted election among the above-
described employees.
(c) In any like or related manner causing or attempting to cause
the Company to discriminate against any such employee in violation of
Section 8 (a) (3) of the Act.
(d) In any like or related manner restraining or coercing said em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Jointly and severally with Respondent Company reimburse the
Company's employees on its Washington County, Pennsylvania, proj-
ect for any initiation fees, dues, or other moneys paid or checked off
as a condition of employment pursuant to the agreement of Novem-
ber 7, 1960, or any extension, renewal, modification, or supplements
thereof, or any agreement superseding it.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all records necessary to analyze
the amounts of moneys due under the terms of this Order.
(c) Post at its offices and meeting halls in the vicinity of Washing-
ton, Pennsylvania, the notice attached hereto marked "Appendix B." 7
Copies of said notice, to be furnished by the Regional Director for the
Sixth Region, shall, after being duly signed by the Unions' representa-
tives, be posted by them immediately upon receipt thereof and be
maintained by them for 60 consecutive days thereafter in conspicuous
places including all places where notices to members are customarily
posted. Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Mail to said Regional Director signed copies of Appendix B
for posting by the Company in and about its Washington County,
Pennsylvania, project as provided above herein. Copies of the said
notice, to be furnished by the Regional Director, shall, after being
signed by the Respondent Unions' representative, be forthwith re-
turned to the Regional Director for disposition by him.
(e) Notify the Regional Director for the Sixth Region, in writing,,
within 10 days from the date of this Order, what steps Respondent
Unions have taken to comply herewith.
7 See footnote 5.
1290 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor-
Management Relations Act, we hereby notify our employees that :
WE WILL withdraw and withhold recognition from United
Mine Workers of America, District 50, and its Local Union No.
14693 as the representative of any of our employees on our
Washington County, Pennsylvania, project for the purpose of
dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of em-
ployment, unless and until the above-named organization shall
have demonstrated its exclusive majority representative status
pursuant to a Board-conducted election among our employees.
WE WILL NOT perform or give effect to our November 7, 1960,
agreement relating to our Washington County, Pennsylvania,
project with said Respondent Unions, or to any modification, ex-
tension, supplement, or renewal thereof, or to any other contract,
agreement, or understanding with respect to our Washington
County, Pennsylvania, project, entered into with Respondent
Unions relating to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless
and until United Mine Workers of America, District 50, and its
Local Union No. 14693 shall have demonstrated their exclusive
majority representative status pursuant to a Board-conducted
election among our employees, provided, however, that nothing
herein shall be construed to require us to vary any substantive
provisions of such agreement or to prejudice the assertion by
our employees of any rights which they may have thereunder.
WE WILL NOT solicit checkoff, authorizations for, or member-
ship in, said Respondent Unions by threats or otherwise, or in
any like or related manner, interfere with, restrain, or coerce our
employees on our Washington County, Pennsylvania, project in
the exercise of their rights to self-organization, to form labor
organizations, to join or assist any labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a 'condition of employment, -as
authorized in Section 8 (f) of the Act.
BEAR CREEK CONSTRUCTION CO. 1291
WE WILL jointly and severally with the above-named labor
organizations reimburse our employees at our Washington
County, Pennsylvania, project for initiation fees, dues, or other
moneys paid or checked off as a condition of employment pur-
suant to the agreement of November 7, 1960, or any extension,
renewal, modification, or supplements thereof, or any agreement
superseding it.
BEAR CREEK CONSTRUCTION CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 2107 Clark Building, 701-17 Liberty Avenue, Pittsburgh 22,
Pennsylvania (Telephone, Grant 1-2977) if they have any question
concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS OF UNITED MINE WORKERS OF AMERICA,
DISTRICT 50, AND ITS LOCAL UNION No. 14693, AND TO THE EM-
PLOYEES OF BEAR CREEK CONSTRUCTION CO. (WASHINGTON COUNTY,
PENNSYLVANIA, PROJECT)
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT perform or give effect to our agreement of No-
vember 7, 1960, with Bear Creek Construction Co., relating to
its Washington County, Pennsylvania, project, or to any modi-
fication, extension, supplement, or renewal thereof, or to any
other contract, agreement, or understanding entered into with
said Company relating to grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment
unless and until we shall have demonstrated our majority status
pursuant to a Board-conducted election among employees of the
above Company at the Washington County, Pennsylvania, project,
provided, however, that nothing herein shall be' construed to re-
quire the Company to vary any substantive provisions of such
agreement or to prejudice the assertion by employees of any rights
which they may have thereunder.
WE WILL NOT act, or attempt to act, as the exclusive bargaining
representatives of any of the employees of Bear Creek Construc-
tion Co. on its Washington County, Pennsylvania, project for the
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of dealing with Bear Creek Construction Co. concern-
ing grievances , labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment unless and until
we have demonstrated our exclusive majority representative
status pursuant to a Board-conducted election among employees
of Bear Creek Construction Co. on its Washington County, Penn-
sylvania, project.
WE WILL NOT in any like or related manner restrain or coerce
employees of Bear Creek Construction Co. on its Washington
County, Pennsylvania, project in the exercise of their rights
guaranteed in Section 7 of the Act.
WE WILL jointly and severally with the above-named Company
reimburse those company employees on the Washington County,
Pennsylvania, project for initiation fees, dues, or other moneys
paid or checked off as a condition of employment pursuant to the
agreement of November 7, 1960, or any extension, renewal, modi-
fication, or supplement thereof, or any agreement superseding it.
UNITED MINE WORKERS OF AMERICA, DISTRICT
50, AND ITS LOCAL UNION No. 14693,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 2107 Clark Building, 701-17 Liberty Avenue, Pittsburgh 22,
Pennsylvania (Telephone, Grant 1-2977) if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Brothehrood of Car-
penters and Joiners of America , Local 2274, AFL-CIO, complaints were duly issued
herein against Bear Creek Construction Co. and United Mine Workers of America,
District 50, and its Local Union No. 14693, charging violations of Section 8(a)(1),
(2), and ( 3) and Section 8(b)(1)(A) and (2 ), respectively, of the National'
Labor Relations Act, as amended , herein called the Act. These proceedings with
all parties represented were heard before me , Albert P. Wheatley, the duly designated
Trial Examiner, in Washington , Pennsylvania , on September 11 and 12 , 1961. After
the close of the hearing , the General Counsel and the Respondents fled briefs 1
which I have considered in preparation of this report.
Upon the entire record and observation of the witnesses , I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS INVOLVED
Bear Creek Construction Co., herein called Respondent Company, is a Pennsyl-
vania corporation engaged in the building and construction industry , primarily in
i The briefs were received in due course on October 9, 1961.
BEAR CREEK CONSTRUCTION CO. 1293
the construction of highway projects, with its principal office in Salunga, Pennsyl-
vania. During the period of time material herein, Respondent Company purchased
goods and materials from outside the Commonwealth of Pennsylvania for use
within said Commonwealth of a value in excess of $50,000. On the basis of the
foregoing findings of fact, I find and conclude that Respondent Company is engaged
in commerce or in a business affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
United Mine Workers of America, District 50 , and its Local Union No. 14693
(herein collectively called Respondent Unions ) and United Brotherhood of Car-
penters and Joiners of America, Local 2274, AFL-CIO, are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Facts and Conclusions
In September 1960, Respondent Company was awarded a subcontract by Nello L.
Teer Company, prime contractor, calling for the construction of bridges in con-
nection with Teer's highway construction project near Washington, Pennsylvania.
In the latter part of September or earlier part of October 1960, James Krumenacker,
-field representative for District 50, contacted management of Respondent Company
and requested recognition and a contract covering persons employed in the building
and construction industry. Respondent Company recognized Respondent Unions
and agreed to enter into a written contract. A contract was executed on November 7,
1960. One of the questions herein is whether Respondent Unions were, on Novem-
ber 7, unions assisted by unfair labor practices.
The first payroll in connection with actual performance of construction work was
on or about October 17, 1960, shortly after Respondents had agreed that a collective-
bargaining contract would be executed.
On November 7, 1960, the date the formal contract was executed Respondent
Company employed 29 nonsupervisory, nonclerical employees of the type defined
in the bargaining unit set forth in the agreement between Respondents.
During one of his early visits to the project (in October 1960), District 50 Field
Representative Krumenacker left a pad of District 50 membership and dues and
initiation fees checkoff authorization cards with Respondent Company's officials?
Thereafter, until early April 1961, Respondent Company's officials solicited signa-
2 The cards read as follows
MEMBERSHIP APPLICATION AND CHECK-OFF
AUTHORIZATION DISTRICT 50, UNITED
MINE WORKERS OF AMERICA
I hereby request and accept membership in District 50, United Mine Workers of
America, and authorize it to represent me in my behalf to negotiate and execute any
and all agreements pertaining to wages, hours and conditions of work. This power
to act in my behalf expressly revokes and shall supersede all previous authorizations
which I may have given to any other person or organization for the purpose of
representing me as an employee. The Constitution, Laws, Rules, Policies, Regulations
and Edicts of the above Union and all amendments thereto shall be binding upon
me. In consideration for services rendered and to be rendered by the above Union,
I agree to pay all reasonable amounts of money lawfully required as a condition to
obtain and maintain membership in good standing.
My employer, therefore, is hereby authorized to deduct from my wages and turn
over to the officer or representative, as designated in the applicable agreement, all
such amounts of money above outlined and limited to the amounts provided in the
applicable agreement between the above Union and my employer, and this authoriza-
tion and assignment shall be irrevocable for the term of the applicable contract be-
tween the Union and the Company or for one year, whichever is the lesser, and
shall automatically renew Itself for successive yearly or applicable contract periods
thereafter, whichever is the lesser , until I give written notice to the Company and
the Union at least 60 days and not more than --- days before any periodic renewal
date of this authorization and assignment of my desire to revoke the same.
Signature----------------------------------------------- Clock No----------
Address -------------------------------------------------------------------
Employed by----------------------------------------------------------------
Social Security No--------------------------- Date ------------------------
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tures ' to, these cards during the hiring process .3 More than half of the 29 employees
executed District ' 50 cards on or- before November 7, as a result of solicitation by 1
or more of Respondent Company 's representatives during the hiring process.
There is little doubt that by virtue of the aforementioned solicitation Respondent
Company engaged in conduct proscribed by Section 8(a)(1) and (2) of the Act.
It seems to follow, and I find, that, therefore, Respondent Unions, at the time the
agreement was executed were not free from assistance through unfair labor prac-
tices. Respondents argue that Section 8(f) of the Act permits prehire agreements
and does not require a labor organization to establish majority status to enter into
such -an agreement and that, therefore, assistance under Section 8(f) of the Act
refers to assistance by an employer in the administration of the labor organization
or domination of 'same (neither exists here ) and not to assistance in obtaining
majority status. While such an argument has considerable appeal it must be rejected
in the light of the language of Section 8(f) referring to such assistance as is pro-
scribed by Section 8(a) of the Act? Lack of majority does not invalidate a con-
tract otherwise valid under Section 8(f) but assistance in obtaining majority status,
except as authorized in Section 8(f), is proscribed by the requirement in Section
8(f) that the labor organization not be "established, maintained or assisted by any
action defined in Section 8(a) of this Act as an unfair labor practice."
Some of- those whose membership in District 50 was obtained by Respondent
Company during the hiring process were also interrogated as to their then current
union membership or affiliation. In other instances employees were informed that
membership in District 50 was a condition of employment at this project.5 Further-
more, from the totality of the evidence it is apparent, and I find, that the circum-
stances under which signatures to District 50 cards were sought were such that an
atmosphere of urgency existed implying that immediate execution of a District 50
card was one of the conditions of employment. It is settled that such conduct
under such circumstances constitutes violations of Section 8(a) (1), (2), and (3) of
the Act.
The collective-bargaining agreement executed on November 7, 1960, includes,
inter alia , union-security provisions requiring membership in Respondent Unions as
a condition of employment on the 16th day from the date of the contract execution
or from the date of hire, whichever is longer, and provisions concerning checkoff
of initiation fees and dues. Subsequent to the contract's execution on November 7,
the provisions noted immediately above have been made effective. Here again the
pivotal question is whether Respondent Unions are assisted or maintained unions
by virtue of the aforementioned conduct. If they are, the execution and mainte-
nance of this contract are unlawful. Otherwise, they are not. For reasons already
noted, I answer this question in the affirmative and find that by executing and en-
forcing the contract Respondent Company violated Section 8(a)(1), (2), and (3)
of the Act and Respondent Unions Section 8(b)(1)(A) and (2) of the Act.
N. THE REMEDY
Having found that Respondents have engaged in unfair labor practices in viola-
tion of the Act, I recommend that Respondents, to effectuate the policies of the
Act, cease and desist therefrom and take the affirmative action hereinafter specified.
3 Such solicitation involved giving District 50 cards routinely to each of the employees
concerned at about the time of employment along with the W-2 Federal Tax Form, a
statement that the project is a District 50 job and an explanation of dues and initiation
fee deductions
Section 8(f) reads:
It shall not be an unfair labor practice under subsections (a) and (b) of this
section for an employer engaged primarily in the building and construction industry
to make an agreement covering employees engaged (or who, upon their employment,
will be engaged) In the building and construction industry with a labor organiza-
tion of which building and construction employees are members (not established,
maintained, or assisted by any action defined in section 8(a) of this Act as an unfair
labor practice) because (1) the majority status of such labor organization has not
been established under the provisions of section 9 of this Act prior to the making of
such agreement, or (2) such agreement requires as a condition of employment,
membership in such labor organization after the seventh day following the beginning
of such employment or the effective date of the agreement, whichever is later . . . .
5 The evidence concerning this matter is conflicting. I find the facts to be as noted
above.
OATES BROS., INC. 1295
Since the evidence reveals that employees were coerced into signing District 50
cards-the cards were signed under circumstances indicating union membership
and initiation and dues payments were required as a condition of employment-
the remedy of reimbursement of all moneys paid by the employees to the Respond-
ent Unions appears applicable and is recommended herein.
CONCLUSIONS OF LAW
In summary I find:
1. The evidence adduced in.this proceeding satisfies the Board 's requirements for
the assertion of jurisdiction herein.
2. United Mine Workers of America, District 50, and its Local Union No. 14693
and United Brotherhood of Carpenters and Joiners of America , Local 2274, AFL-
CIO, are labor organizations within the meaning of Section 2(5) of the Act.
3. The evidence adduced establishes that Respondent Company has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(1),
,( 2), and ( 3) of the Act.
4. The evidence adduced establishes 'that Respondent Unions have engaged in
and are engaging in unfair labor practices within the meaning of Section 8(b) (1) (A)
and (2 ) of the Act. -
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and ( 7) of the Act. '
[Recommendations omitted from publication.]
Oates Bros., Inc. and Truck Drivers Union No. 677, International
Brotherhood of Teamsters ,' Chauffeurs , Warehousemen and
Helpers of America, Ind. Case No. 2-C-4-7808. February 27,
1960
DECISION AND ORDER
On August 3, 1961, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief. • The Re-
spondent thereupon filed a reply brief.
The Board 1 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, the briefs, and the entire record in
this proceeding, and hereby adopts ,the findings,2 conclusions, and
recommendations of the Trial Examiner with the following additions :
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman McCulloch and Members Rodgers and Leedom]
'In the absence of exceptions , Member Rodgers adopts the Trial Examiner 's jurisdic-
tional findings , and also the findings that the strike which commenced on or about
October 28, 1959 , became an unfair labor practice strike on September 23, 1960
Moreover, Member Rodgers would not go beyond the Trial Examiner ' s' findings in this
case and would not therefore find that the Respondent misrepresented to the Union its
financial status and the status of its business operations, or that the Respondent un-
lawfully insisted that the appointment of a shop steward be subject to Respondent's
approval . He would therefore limit the Order herein accordingly.
135 NLRB No. 129.