Bretz Fuel Co.

National Labor Relations Board - Board Decisions

Apr 27, 1953

104 N.L.R.B. 371 (N.L.R.B. 1953)

BRETZ FUEL COMPANY 371
BRETZ FUEL COMPANY and JOHN BARTOLETTA. Case No.
6-CA-451. April 27, 1953
DECISION AND ORDER
On November 14, 1952, Trial Examiner Charles W. Schneider
issued his Intermediate Report in the above -entitled proceeding,
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices alleged in the complaint 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 Re-
spondent filed exceptions to the Intermediate Report and a
supporting brief . The Respondent has requested oralargument.
This request .is denied inasmuch as the records and brief,
in our opinion, adequately present the issues and the positions
of the parties.
The Boards has reviewed the rulings of the Trial Examiner
made at the hearing, and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief,
and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial
Examiner, with the additions and modifications noted below.
We agree with the Trial Examiner that the Respondent
committed an unfair labor practice by refusing John Bartoletta
access to its property to perform his duties as union check-
weighman, thereby causing his loss of employment as union
checkweighman.
In this connection , we rely upon the following salient facts
as set forth accurately and more fully in the Intermediate
Report:
Prior to Bartoletta ' s assumption of his duties as union
checkweighman, on September 1, 1950, he was in the Re-
spondent's employ. It is evident, as the Trial Examiner
found, from the terms of the collective-bargaining agreement,
that he thereafter was an employee of the Union. Although the
Respondent legally exercised no control over the terms and
conditions of his employment, in the course of his employment
Bartoletta voluntarily performed tasks of direct benefit to it.
Shortly after he commenced his duties, the Respondent's own
weighman was transferred to other duties, and Bartoletta
provided Respondent with a courtesy carbon copy of his weigh
sheets . In addition , he directly assisted the tipple crew in the
Respondent 's employ by pushing coal cars onto and from the
scale. Although the Union paid his social-security taxes, it
was the Respondent that made the, necessary deductions from
the miner's pay for his compesation as union checkman,
and then turned these deductions over to him. When Bartoletta
refused to weigh the coal on February 20, 1951, in the presence
t 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
Houston, Murdock, and Styles].
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the picket line, the Respondent toldhimthat he was "fired."
The ensuing work stoppage which resulted from this action
continued uninterrupted except for a short period of time, until
March 21, 1951, as a result of the Respondent's refusal to
permit Bartoletta access to its property in order to perform
his functions as union checkweighman. Bartoletta's refusal to
appear for work on March 22, 1951, subsequent to the arbitra-
tor's decision, was, as the Trial Examiner found, a result
of the Respondent's threats of bodily harm. A temporary union
checkweighman was appointed from among the employees, and
the mine resumed operations on March 22, 1951. When
Bartoletta presented himself, on March 29, 1951, to the plant
superintendent, in the absence of the Respondent's president
who had made the threat, he was informed that there was no
work for him as union checkweighman. About October 1951
another employee, Martin, was selected union checkweighman.
Martin's employment lasted until February 1952, when because
of a decrease of work the Union discontinued his services and
he was restored to the Respondent's payroll.
The Respondent contends that if Bartoletta was not the
Respondent's employee, it could not have "fired" him. If on
the other hand, it argues, Bartoletta was an employee within
the meaning of Section 2 (3) of the Act, he was not denied
employment in violation of the Act, but because of his illegal
and unauthorized activities. In addition the Respondent asserts
that it was willing to conform to the arbitrator's award by
allowing Bartoletta to resume his position as union check-
weighman, and that by failing to appear for work on March 22,
1951, he voluntarily terminated his employment.
We find no merit in these contentions for the following
reasons: Notwithstanding the fact that Bartoletta was the Union's
employee, the association between Bartoletta and the Re-
spondent was established by the terms of the collective-
bargaining agreement. By virtue of his employment, he was
brought into close association with the Respondent's employees.
Moreover, he was performing work, with the knowledge and
acquiescence of Respondent, which was of direct benefit to
it in supplying the Respondent with copies of the weighing
sheet, thereby permitting the Respondent to shift its own
weighman to another job, and by rendering- assistance to the
tipple crew in the performance of its duties. By arrogating to
itself the authority to "fire" Bartoletta, in contravention
of the express terms of the contract, the Respondent no
doubt based its action upon this intimate working relationship.
By unlawfully assuming this authority, and by refusing Barto-
letta access to its property to perform his duties as union
checkweighman, the Respondent effectively exercised a veto
power over a most significant aspect of his employment, the
essence of which was not only to cause the termination of his
employment at Respondent's mine, but to cut off his relation-
ship with the Union as well. The Respondent's assertion
that Bartoletta voluntarily terminated his employment is
vitiated by its threats of bodily harm to Bartoletta, as well
as its threat to close the mine if he appeared for work on
BRETZ FUEL COMPANY 373
March 22, 1951. On these facts, therefore, and on the record
as a whole, we find, like the Trial Examiner, that the Re-
spondent discriminated in regard to Bartoletta's "tenure of
employment" in violation of Section 8 (a) (3) and 8 (a) (1)
of the Act, by refusing him access to its property to perform
his duties as union checkweighman.2 We do not find, however,
that the Respondent discharged Bartoletta.
When an employee becomes union checkweighman, and that
job is subsequently discontinued, by custom in the industry
the union checkweighman is restored to the employer's pay-
roll, as Martin was, as its employee. Accordingly, in agree-
ment with the Trial Examiner, we shall order that the Re-
spondent offer Bartoletta suitable employment as its employee,
if there is no employment available to him as union check-
weighman.
ORDER
U on 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 orders that the Respondent,
Bretz Fuel Company, Morgantown, West Virginia, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from preventing the employment of John
Bartoletta or any other individual as union checkweighman,
because he has engaged in union or concerted activity pro-
tected by the Act; from preventing the performance of the
duties of such position; from refusing access to its property
for such purpose; and from refusing employees their choice
of union checkweighmen, or from engaging in any similar or
related acts.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Notify John Bartoletta and the United Mine Workers,
Local Union No. 9769, that it has no objection to Bartoletta's
employment as union checkweighman, and that it will permit
him access to the property for the purpose of performing
such duties, without interference or threats.
(b) Offer to John Bartoletta suitable employment if there
is no employment available for him as union checkweighman,
without prejudice to his seniority and other rights and pri-
vileges .
(c) Make whole John Bartoletta for any loss of pay as union
checkweighman which he may have suffered for the period
from February 26, 1951, to the date in February 1952 when the
Union discontinued the checkweighman's services; and for any
loss of pay he would have earned as an employee of the Re-
spondent from the date of the discontinuance of the check-
weighman's job in February 1952 to the date of its offer of
reinstatement , less his net earnings during that period,, and
! See Austin Company, 101 NLRB 1257 , and cases therein.
$The said loss of pay shall be computed on a quarterly calendar basis in accordance with
the formula adopted by the Board in F. W . Woolworth Co., 90 NLRB 289.
283230 0 - 54 - 25
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the manner described in the "The Remedy" section of the
Intermediate Report.
(d) Upon request make available to the Board or its agents,
for examination and copying, all payroll records and reports,
and all other records necessary to analyze the amount of
back pay due.
(e) Post at its Margaret No. 3 mine, Masontown, West
Virginia, copies of the notice attached hereto as Appendix A. "
Copies of said notice to be supplied by the Regional Director
for the Sixth Region, shall, after being duly signed by the
Respondent's representative be posted by the Respondent
immediately upon receipt thereof, and maintained by it for
sixty (60) consecutive days in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for the Sixth Region in
writing within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
4In 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."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations Board , and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT prevent the employment of John Bartoletta
or any other individual as union checkweighman because he
has engaged in union or concerted activities; or prevent
the performance of the duties of such position; or refuse
access to our property for such purpose, or refuse
employees their choice of union checkweighman; or engage
in any like or related acts.
WE HAVE no objections to the employment of Bartoletta
as union checkweighman.
WE WILL offer to Bartoletta suitable employment as our
employee if there is no employment available for him as
union checkweighman.
Dated ................
WE WILL make Bartoletta whole for any loss of pay in-
curred by reason of the discrimination against him.
BRETZ FUEL COMPANY,
Employer.
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.
BRETZ FUEL COMPANY
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
375
Upon charges filed by John Bartoletta , an individual , on May 29 . 1951, against Bretz Fuel
Company , Morgantown , West Virginia , the Respondent herein, the General Counsel of the
Board issued his complaint and notice of hearing on July 7, 1952 . The complaint alleged the
commission of unfair labor practices by the Respondent in violation of Section 8 (a) (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Star . 136, in that the
Respondent
on or about February 20, 1951 , and at all times thereafter , [did] prevent and
refuse necessary access to its property by John Bartoletta , employed as checkweighman
by United Mine Workers of America , Local Union No. 9769, a labor organization within
the meaning of the Act , and has prevented the said Bartoletta from performing his check-
weighman ' s duties as an employee of the aforesaid labor organization, thereby causing
Bartoletta ' s loss of employment as checkweighman of the aforesaid labor organization,
and further thereby refusing Respondent ' s employees their choice of checkweighman,
because Bartoletta engaged in concerted activities with the employees of the Respondent
and of other employers for mutual aid and protection as guaranteed in Section 7 of the
Act, and in order to discourage concerted activities of the Respondent 's employees for
purposes of their mutual aid and protection.
The Respondent ' s subsequent motion for bill of particulars oh the complaint was granted in
part by the undersigned Trial Examiner . By answer filed the Respondent denied the commis-
sion of unfair labor practices.
Upon due notice a hearing was held at Morgantown , West Virginia , on August 11, 12, 13.
and 14 , 1952 . The General Counsel and the Respondent appeared , Were represented by counsel,
and were afforded full opportunity to j articipate and to present relevant and material evidence.
The Respondent's motions to dismiss made during the hearing are disposed of by the follow-
ing findings and recommendations:
Opportunity was afforded fdr oral argument and the presentation of briefs . A brief and
proposed findings _ were received from the Respondent bn September 22, 1952, and a brief
from the General Counsel on September 25. The Respondent ' s proposed findings are rejected,
save for the proposed finding that Bartoletta was an employee of the Union.
Upon the entire record in the case, and my observation of the witnesses, I make the
following further findings:
L THE BUSINESS OF THE COMPANY
For the purpose of this proceeding the parties stipulated the following factss, which are
hereby found.
The Bretz Fuel Company is and has been for a long period of time a West Virginia corpo-
ration , having its prihcipal office in Morgantown , West Virginia , and mines located in Mason-
town and Bretz , West Virginia, where it is engaged in the mining of coal.
During the year 1951 , the Company purchased for use at its mine in Masontown, West
Virginia , equipment , materials, and supplies valued in excess of $ 190,000, of which approxi-
mately 70 percent was shipped to the Company' s mine from points outside the State of West
Virginia.
During the year 1951; the Company mined and §old coal valued in excess of $ 500,000, of
which in excess of 90 percent was sold and shipped to poirite outside the State of West Virginia.
During the period from January 1 to July 31, 1952 , the Company mined and sold coal valued in
excess of $400,000 , of which approximately 99 percent was sold and shipped to points out-
side the State of West Virginia.
The Company ein)jloys an approximate total of 140 employees at its Bretz and Masontown,
West Virginia, mines.
The Company stipulates and agrees that it is engaged in commerce within the meaning of
the National Labor Relations Act, as amended, and that it is subject to the jurisdiction of the
Board.
IL THE LABOR ORGANIZATION INVOLVED
United Mine Workers of America, Local Union No . 9769 , is a labor organization within the
meaning of Section 2 (5) of the Act, admitting to membership employees of the Respondent.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The instant case arose at the Respondent ' s Margaret No. 3 mine at Masontown, West
Virginia , the employees of which are represented , under collective-bargaining contract with
the Respondent , by the United Mine Workers of America . The particular Local involved is
No. 9769.
Under the contract , the miners are permitted to select a checkweighman to check the
weights or measure of coal produced by them . The weighing operation is .performed outside
the mine on a scale at the tipple . The cars of coal are hauled to the scale , weighed, the
miner credited on a check sheet with the tonnage recorded , and the coal then dumped into
bins to be hauled away.
The union checkweighman 's wages here were paid by deductions from the pay of the
miners . These deductions were made by the Employer , who then turned the sum over to the
checkweighman . The Union paid the checkweighman' s social-security taxes.
The checkweighman is responsible to and under the direction of the union mine or pit
committee, which is composed of three members elected from among themselves by the union
membership employed at the mine , and charged with the duty of adjusting disputes under the
contract . The checkweighman is paid on the basis of a statement of time submitted by him and
approved by the mine committee . The checkweighman ,may not, under union constitutional
procedures , be removed except by the membership , and upon charges and after hearing. If
the employer is dissatisfied with the checkweighman ' s performance of his duties , the emr
ployer may take the matter up with the mine committee . In the event of difference of opinion,
the contract provides a mechanism , or grievance procedure , which the parties may utilize
for the settlement of any local dispute . The final step in this procedure is binding solution
by an impartial umpire.
The employer may also employ his own weighman - either in lieu of or in conjunction with
the union checkweighman . In the absence of the checkweighman the employer is authorized
to proceed with the weighing and tallying of coal by his own weighman.
Although the checkweighman may, and at times apparently does, assist on a voluntary
basis, the job of pushing cars of coalupon and from the scale is the responsibility of company
employees about the tipple, known as the tipple crew . The checkweighman's sole functions
are, without interference with the proper operation of the mine , to check the weights or
measures of coal , credit the proper miner, record and post the tonnages daily , and at rea-
sonable intervals and times to check the accuracy of the weighing or measuring devices.
John Bartoletta , the charging party herein , secretary of the Local Union , was elected at
a meeting of Local No. 9769 as checkyveighman at Margaret No. 3 mine in mid-August 1950,
and entered upon the discharge of his duties on September 1, 1950 . At the time of his election
Bartoletta was an employee of the Company . When informed by the mine committee of
Bartoletta' s appointment, Alec Brainney , the Respondent ' s superintendent , expressed his
approval , saying that Bartoletta was one of his best men . Shortly after he began as check-
weighman , Bartoletta signed the following statement:
The undersigned John Bartoletta , an employee of Local No . 9769 , United Mine Workers
of America, employed by it as checkweighman for Bretz Fuel Company mine , hereby
agrees that he works on said company ' s property as above stated , with there [ sic] per-
mission but not as their employee , and specifically waives any liability on the part of
said Bretz Fuel Company for any injury that might be suffered by him while working on
their property but not in their employment.
It is apparent from the foregoing facts, and it is found , that Bartoletta was an employee of
Local No . 9769 . At the time Bartoletta began as checkweighman the Company had its own
weighman , Joe Lawson , but after 2 months Lawson was transferred to a position in the office.
Thereafter Bartoletta , as a matter of courtesy , provided the Company with carbon copies of
his weigh sheets for its own tonnage record, and Lawson was not replaced.
In February 1951 legislation affecting mine conditions was pending in the West Virginia
Legislature . This legislation was known as the "Fire Boss" bill . February 23 , 1951, was
designated as a "holiday" under the miners' contract in order that miners might contact
their legislators regarding the bill . Notice was posted by the Respondent at the No. 3 mine
that it would not operate on the 23rd and 24th.
On February 20, 1951 , however, miners employed at other mines in the area "jumped the
gun" on the "holiday," and began to picket mines in protest over the Fire Boss bill At
about 1: 30 p.m . on that day , as the day shift was finishing its work and beginning to come out
of the mine, 75 to 80 pickets appeared at Margaret No. 3 and told employees that they were
closing the mine down over the Fire Boss bill At that time a number of cars of coal were
BRETZ FUEL COMPANY 377
on the tipple awaiting weighing and dumping . The tipple crew ceased working. Bartoletta
asked the pickets for permission to weigh the standing coal . The pickets refused . For loaded
cars to remain on the tracks overnight constitutes a safety hazard
Shortly thereafter E. P. Boyle, the Respondent 's president , appeared at the mine and
directed Bartoletta to weigh the coal. Bartoletta refused , citing the pickets as the reason
therefor . Boyle asked Bartoletta to go with him to the mine committee and the district repre-
sentative Bartoletta replied that he would not weigh the coal in the presence of the pickets no
matter who told him to do so . Boyle then told Bartoletta that he was " fired." Bartoletta
responded that he was the Union 's and not Boyle' s employee , and that Boyle could not fire
him. Boyle said that he was fired anyway . Boyle then appealed to the mine committee for
permission to weigh and dump the coal . The committee , in turn , asked permission of the
pickets, who again refused . The committee then told Boyle that they would not direct any
work to be done in the presence of the pickets. i
In this same conversation Boyle told the committee that he had " fired" Bartoletta be-
cause Bartoletta would not " pass" the picket line ; and further said that he did not want
Bartoletta on the premises any longer . The committee argued , without success, that Bartoletta
was their and not Boyle ' s employee , and further that the responsibility for the decision not
to work was the committee ' s, and not Bartoletta's.
Sometime later , as I reconstruct the facts , Harry Myers , a representative of District 31 of
the Union , arrived told the pickets that their action was unauthorized and ordered it discon-
tinued, but without any apparent immediate success . The committee discussed the situation
inconclusively for a time and then went home , as apparently did most of the day-shift em-
ployees.
Ultimately Boyle reached an agreement with the pickets to close down the mine the next
day, but that the machinemen , who cut coal inside the mine, could finish their night shift of the
20th. The loaded cars of coal were then hauled back into the mine as a safety precaution. Z
The mine remained closed on February 21, presumably pursuant to Boyle's agreement with
the pickets , and again on February 22--pursuant either to the agreement or because Boyle
voluntarily kept it closed . On February 23 and 24 it was closed pursuant to the notice pre-
viously posted by Boyle, and adverted to heretofore.
On February 22, the Local Union met , discussed the "firing" of Bartoletta , and instructed
the mine committee to try to persuade Boyle to rescind his action . The members voted
further not to report for work on Monday, the 26th, if Boyle refused to reinstate Bartoletta
The committee saw Boyle on the following day. February 23. Boyle refused, though re-
quested, to allow Bartoletta to return to work . The committee then asked Boyle ' s permission
to file a grievance under the contract . Boyle responded , "go ahead," and a written grievance
was filed by the committee on the same day with officials of District 31 in Fairmont. On the
next day , February 24 , pursuant to the grievance, Leo Wisinewski, district representative,
along with the mine committee , met with Boyle Wisinewski told Boyle that he had no right
to discharge a union checkweighman ; said that all the men , including Bartoletta . should be
returned to work , and that if Boyle was not satisfied with that " decision," Boyle should sub-
mit the case to the umpire under the contract . Boyle refused and the meeting broke up with
some heat . Wisinewski specifically directed the employees and Bartoletta to present them-
selves for work on Monday, the 26th. 3
On the morning of February 26, 1951 , all the employees and Bartoletta reported for work.
Lloyd Feathers , the Respondent ' s mine foreman , was in charge that morning. Feathers told
i The above findings as to the conversation between Boyle and the mine committee are
based on the credited testimony of committeemen Sigley and Knotts . Boyle's testimony was
that he asked the committee to provide a checkweighman and it refused ; that he then asked if
he could dump the coal, and the committee said no. The conflict'does not seem of critical im-
portance on the issues here.
2Boyle testified that the pickets told him initially that they had no objection to weighing and
dumping the standing coal, or to "closing down the mine properly"; and further, that he told
this to Bartoletta, who nevertheless still refused to weigh the coal . Bartoletta denied being so
told . There is no plausible reason why Bartoletta should have refused to weigh the coal if the
pickets had no objection to it; particularly in view of the fact that he himself had asked for such
permission initially and been refused . Note that the mine committee also asked the pickets for
permission and was refused . Bartoletta 's denial is credited.
SBoyle testified that he told Wisinewski and the committee that he would not discuss the
situation until the miners - excludingBartoletta - returned to work. Since it was contemplated,
as I understand the facts , that the menwould return on the 26th at the conclusion of the holiday,
I conclude that Boyle probably confused the time with later occasions when he declined dis-
cussion unless the miners returned to work.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the mine committee that if Bartoletta went to work the mine would close . The employees
thereupon went home . The mine remained closed until March 15, when it reopened under the
circumstances described hereinafter. 4
About March 1, the Local Union began to picket other mines in the area in which Boyle had,
or the Union thought that he had , interests This picketing was in pursuance of the dispute
over Bartoletta The employees in those mines , represented by other locals of the United
Mine Workers , then went out on sympathy strikes Margaret No.3 mine was not picketed,
however.
On March 7 , 1951, United Mine Workers District 31 representatives , Gladski and Murray,
called a special meeting of all the striking locals and Local 9769 . At this meeting Gladski
urged the locals on sympathetic strike to return 'to work . There is dispute , unnecessary to
resolve, as to whether he also urged the Respondent ' s employees to return to work without
Bartoletta . In any event , the appeal was apparently unsuccessful On March 14 , the district
officials called another such meeting at which District President Urbaniak presided . Urbaniak
reiterated the request made by Gladski the week before.
During the course of the March 14 meeting mine committeeman Sigley suggested to District
President Urbamak that the latter contact the Respondent ' s president , Boyle, to see if there
was not some way in which the dispute could be settled . Urbaniak and other district officials
then saw Boyle . After some discussion , agreement was reached that the mine would reopen;
that the employees , excluding Bartoletta , should return to work ; and that a new grievance
'should be filed respecting Bartoletta . This new grievance Boyle agreed to let his superinten-
dent, Alec Brainney , handle , through the stage of submission to the umpire . It was further
agreed that the Respondent- would pay Bartoletta ' s wages from the date the mine reopened to
the date of the umpire' s decision
On the following morning , March 15, 1951, the Respondent ' s employees , Bartoletta ex-
cluded, returned to work and the mine reopened . On the same day a new grievance requesting
the reinstatement of Bartoletta was submitted by the mine committee to Mine Superintendent
Brainney , who asked that it be put over until the 19th . On the latter date the committee again
met with Brainney and formally and unsuccessfully requested Bartoletta ' s reinstatement.
On the next day, March 20, the case was heard by the umpire under the contract , E. B. Rowe.
Umpire Rowe rendered a decision in favor of Bartoletta . His opinion stated, in part, as
follows:
John Bartalett [sic,, started to work for the Bretz Fuel Company during May 1950,
and was elected by the Local Union No. 9769, on September 1, 1950, to weigh coal.
On the afternoon of February 20, 1951 , a large number of pickets came to the mine
and requested the men to stop work . Checkweighman Bartalett stated he wanted to con-
tinue dumping coal for the balance of that day but was -not permitted to do so by the
Pickets.
Management requested Bartalett to return to the tipple and dump all standing coal. He
refused since there was about eighty pickets present , and he did not care to cross the
picket line.
Management stated that they had agreed with a United Mine Workers of America repre-
sentative that they would pay the aggrieved party $17.00 for each day the mine was
working until the case was settled . Mr. Ed Boyle stated that he had never prevented
Bartalett from working and that he was employed by the Local Union and paid by the
leaders and machine men by having his pay checked off over the payroll . Mr. Boyle also
stated he would pay Bartalett the $ 68 . 00 for loft time as promised.
DECISION
The Umpire inquired if Mr . Ed Boyle would permit John Bartalett to again resume his
work as checkweighman , as under the circumstances that prevailed on February 20, 1951,
with a large crowd of Pickets present, he could not be expected to continue dumping coal
without causing trouble , and that Bartalett should be permitted to weigh coal for the men.
4 The finding in the text as to what Feathers said is based on the testimony of members of
the mine committee. Feathers denied telling the committee that the mine would close if
Bartoletta sought to work . Feathers ' testimony is that all he said was that "there was no
work"; and that he said this pursuant to direction from President Boyle to keep the mine
closed "until a grievance was filed ." But as has been seen , a grievance had been filed on
February 23 and taken up with Boyle. In any event, I do not think the conflict helpful to the
Respondent . If Feathers ' testimony is accepted the employees did not refuse to work on
February 26, but instead were locked out by the Respondent.
BRETZ FUEL COMPANY 379
Mr. Boyle agreed that Bartalett could resume work Again on the next day the mine was
working.
Umpire Rowe rendered his decision at the close of the grievance hearing on March 20.
Later in the day Any White , president of Local 9769, George Shaffer , and Clarence Eberle, all
employees, asked President Boyle whether the mitie would operate the next day. Boyle replied
that it would The men asked if that meant that Bartoletta would also go back to work. Boyle
responded , "hell, no." When the employees referred to the umpire' s ruling , Boyle responded,
"The hell with the umpire . I run this mine ." He further said that Bartoletta would " never
weigh coal on that tipple again ," and that before he would be permitted to, Boyle would "take
the damn scales and drown it in the creek ." Boyle then went on to ask why the employees did
not '`get [ Bartoletta] the hell out of there ." This is undenied.
During the early morning of March 21 President Boyle told two employees , Blosser and
Nicholson , that he had "paid off" Bartoletta , and that Bartoletta was "through ." Boyle further
said that before he would let Bartoletta weigh coal again he would "tear the scales out and
throw it in the creek and pay by the car." 5
The day shift did not work on March 21 . Instead a special union meeting was held late in
the morning . White, Blosser , Nicholson , and Eberle reported to the meeting the statements
which Boyle had made concerning Bartoletta that morning and the previous day. Some members
then said that since Boyle would not let the employees return to work if Bartoletta continued
as checkweighman , a vote should be taken whether to retain him . A motion was made to re-
move Bartoletta as checkweighman , and barely defeated , 23-21 . It was finally decided that
the employees would present themselves for work on the following morning , and if the Respond-
ent refused to permit Bartoletta to resume , the employees would not go to work.
In the early or middle afternoon of that day Bartoletta went to the mine to get some coal
President Boyle and two other employees , one of them John Feathers , were in the mine office.
According to Bartoletta , Boyle asked him "what the hell" he wanted . Bartoletta said that he
had come to get coal Boyle replied, to quote Bartoletta , "You're a goddam liar. I paid you
off yesterday in front of the umpire . Now you get the hell out of here before you get killed."
Boyle ' s version is that when Bartoletta asked for coal Boyle replied that he had none, be-
cause the mine was not working , and that Bartoletta would have to dig it himself ; that Bartoletta
stated that he still wanted the coal ; and that Boyle then responded as follows:
Now listen , Johnny, in God's name please quit the arguing and fighting and get out of
here or someone is going to be killed around these mines . Leave here and come to
work and forget it all.
The testimony of John Feathers ; called as a witness for the Respondent , is that Boyle told
Bartoletta that the tipple was not operating and that he could not give him any coal, and that
Boyle then went on to say, "for God' s sake , Johnny, get out of here before somebody gets
killed."
The entire conversation consumed about 2 minutes and Bartoletta then left.
Shortly afterward , employee Elmer Smith came into the mine office and , as related by
Smith without contradiction , Boyle angrily told Smith that Bartoletta had just been there, and
that Boyle had told Bartoletta to "get the hell out of here , he was through here."
On the basis of my observation of the witnesses , their various accounts , and the preceding
occurrences , I conclude that Boyle ordered Bartoletta off the premises , indicated that he
should remain off, and suggested that physical violence would ensue if Bartoletta did not. In
the context of Boyle' s other statements throughout this period indicating his unwillingness to
permit Bartoletta to resume his work , I do not think it likely that he told Bartoletta to come
back to work.
On the following morning, March 22, the miners came to work at the regular hour. Barto-
letta did not appear , however . Boyle told the miners that if they did not work they would "dis-
charge themselves ." After waiting about 45 minutes, the men chose a temporary checkweigh-
man and went into the mines . While the miners were waiting , Boyle reiterated to union
committeeman Sigley that he would not permit Bartoletta to work if he appeared.
That afternoon Bartoletta told committeeman Sigley that he did not come to work because
of fear of violence from Boyle if he should come on the property . Bartoletta gave District
5 The findings as to this conversation are based on the credited testimony of Blosser and
Nicholson. Boyle 's version is that the conversation took place a week or 10 days prior to
the umpire 's decision, and that what he said was that before he would "let John Bartoletta
weigh coal there," he would "tear the scales out and throw them in the creek, unless they
would follow the United Mine Workers contract."
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Field Representative Serdich the same explanation. Serdich did not suggest any course of
action . Bartoletta also called District President Urbaniak and told him substantially the same
story . Urbaniak either told Bartoletta that he would investigate , or that Bartoletta should
present himself for work and if Boyle did not allow him on the premises , the Union would
"straighten the matter out." Urbaniak further told Bartoletta that the Union could not
"furnish him with police protection if he was afraid of Mr. Boyle."
On March 29, 1951, Bartoletta went back to the mine and, according to his testimony, asked
Mine Superintendent Brainney , in the presence of bookkeeper Lawson, to be allowed to go
back to work as union checkweighman ; that Brainney replied that Bartoletta was "washed up" ;
and if Bartoletta " stepped into the scale house ," Brainney would " shut the mine down."
Brainney ' s testimony as to this incident is that Bartoletta only asked Brainney, "When
you going to put me to work? "; that Brainney responded , " I don't have anything . I am filled
up for the time being ." Lawson ' s testimony is that Bartoletta asked Brainney if the latter
"had any work for him"; and that Brainney responded as Brainney testified . Both Brainney
and Lawson denied that there was any reference to Bartoletta ' s checkweighman job. Brainney
also testified that Boyle had instructed him after the umpire ' s decision to let Bartoletta go
to work . It is inconceivable to me, considering all the circumstances , that Brainney would
have made no reference in the conversation to the checkweighman ' s job if, as the Respondent
asserts , Boyle intended , and told Brainney , to let Bartoletta return to work . In addition,
there is testimony by Brainney and Lawson , denied by Bartoletta , to the effect that around
March 7 Brainney told Bartoletta that he would give Bartoletta some other job at the mine
if Bartoletta would " let the men go back to work." If there was such a job on March 7, no
reason appears why it was not available on March 29; 6 and if it was available , the inference
would be warranted that Bartoletta was refused ^ the job because of his prior union and
concerted activity.
Conclusions
As has been seen , Bartoletta was an employee of the Union . As such he is an employee
within the meaning of Section 2 (3) of the Act , which, so far as here relevant , states:
The term "employee" shall include any employee, and shall not be limited to the
employees of a particular employer , unless the Act explicitly states otherwise, .. .
And see Briggs Mfg. Co., 75 NLRB 569.
Whether Bartoletta also retained status as an employee of the Respondent during his term
as union checkweighman , need not be determined . An employer' s actions with respect to
person not his own employee can in appropriate situations constitute interference ,- restraint,
or coercion with respect to employee rights guaranteed in Section 7 of the Act , or discrimi-
nation in hire, tenure , or terms or conditions of employment encouraging or discouraging
membership in a labor organization in violation of Section 8 (a) (3) of the Act. See West
Kentucky Coal Co., 10 NLRB 87, at 107-109, 111, 114; Commonwealth Telephone Co., 13
NLRB 317, at 322, 325. T
In the instant case the Respondent refused on and after February 20, 1951, to permit
Bartoletta access to its property in order to perform his duties as union checkweighman.
This refusal was because Bartoletta had declined to weigh coal in the presence of the picket
line ; an act which the umpire , charged with the duty of determining respective rights and
obligations under the contract , found to have been justified . This action of the Respondent
would, in the ordinary circumstance , constitute an interference with concerted and union
activity of Bartoletta and the other employees , and a discrimination in hire, tenure, terms,
and conditions of Bartoletta's employment likely (whether that was its purpose or not)
to discourage membership in a labor organization.
IBrainey 's explanation for not offering Bartoletta his checkweighman's job on that early
March occasion was that it would violate the contract to settle the dispute while the em-
ployees were on strike . There is no such provision in the contract . Moreover, as has been
seen, if Foreman Feathers ' testimony is accepted , the employees were not on strike at all.
but instead had been locked out.
Upon all the above considerations and observation of the witnesses. I credit Bartoletta's
account of the March 29 conversation with Brainney.
7 For example, an employer can under certain circumstances interfere with the exercise
of Section 7 rights by preventing union organizers from having access to employees. A
general contractor on a construction project can violate Section 8 (a) (3) by refusing to
permit a subcontractor 's employee (not covered by a valid union -shop contract) to enter the
project unless he joins a union.
BRETZ FUEL COMPANY 381
The Respondent raises a number of contentions, however, which it asserts require a
different result.
The first contention is that Bartoletta ' s action in refusing to weigh the coal constituted
a strike, prevented the operation of the mine, and was in violation of the contract. As has
been seen , the picketing was unauthorized by the Union. But even though it was , the action
of Bartoletta and the Respondent ' s employees in ceasing work as a consequence of it, was not
unlawful or unprotected concerted activity unless the contract forbade such action.
The contract in effect at that time, however, did not contain a no-strike clause, or any
prohibition against strikes or lockouts. It is true that prior contracts did, and that they also
contained provisions permitting the Respondent to refuse to discuss any question during a
work stoppage or to recognize it as a grievance . All those provisions , however, were elimi-
natkd from the contract which was effective during the period July 17, 1950, to June 30,
1952.8
Bartoletta 's action in refusing to weigh the coal in the presence of the picket line was
therefore not in violation of the contract.
The Respondent next contends that Bartoletta ' s action endangered the mine and lives. As
to this it will be noted, first , that the umpire apparently did not so regard it ; or if he did - did
not consider it sufficient justification to refuse to permit Bartoletta to work. I perceive no
reason to conclude that an informed arbitrator selected by the parties themselves upon
the undoubted assumption of his familiarity with mining practices , customs , and require-
ments, would be any more insensitive to the preservation of mining property or miners'
lives than I. In any event, this contention is not sustained . The cars of coal were moved back
into the mine to a safe position , and there is no suggestion that Bartoletta interfered with
that operation or sought to.
Secondly, no reason appears why the Respondent could not have weighed the coal itself,
if the mere failure to weigh it constituted a hazard . The Company' s former weighman,
Lawson, was presumably on the premises ; or if he was not, there were supervisors present
who could have done the work . If the Respondent ' s assumption is that the tipple crew would
not dump the coal then it was not Bartoletta ' s refusal to weigh the coal that created the
problem, but the refusal of the tipple crew to dump it. Over that Bartoletta had no control.
Even if he had agreed to weigh , the situation would have been no Letter . And if the tipple crew
was willing to dump , the Respondent could have weighed the coal itself. As has been seen,
the mine committee refused to authorize the weighing or dumping of the coal In any event,
Bartoletta was checkweighman for the Union, not weighman for the Respondent , and though
he had previously done so as a matter of courtesy, was under no continuing obligation
to provide weighing services for the Respondent.
The Respondent further contends that Bartoletta should have filed a grievance under the
contract (which, it will be noted , he did - promptly ); that the employees struck in violation
of the contract over Bartoletta ' s discharge; and that the Respondent 's whole position after
February 20 was merely that it would not consider the grievance while the employees were
unlawfully on strike.
Assuming that the employees struck on February 26 - and were not locked out instead,
as Foreman Feathers ' testimony suggests - there was no contractual impediment to their
doing so . While the Respondent apparently contends that the only way under the contract in
which it could have litigated the propriety of Bartoletta 's action was by discharging him
and then letting the case go through the grievance procedure on a grievance by Bartoletta
or the Union - no reason appears why the Respondent could not have filed its own grievance
and had the matter adjudicated.
The Respondent also asserts that it accepted the umpire 's decision that Bartoletta be rein-
stated; that Boyle instructed the supervisors to permit him to return to work; that he was
not threatened thereafter ; and that his failure to appear for work on March 22 represented
a voluntary relinquishment of his checkweighman ' s job: probably because of resentment over
the votes cast against him at the March 21 union meeting.
8 That contract specifically stated the following:
Any and all provisions in either the Appalachian Joint Wage Agreement of June 19,
1941, or the National Bituminous Coal wage Agreement of April 11, 1945, containing
"no strike" or "penalty" clause or clauses or any clause denominated " Illegal Suspen-
sion of Work" are hereby rescinded, cancelled, abrogated and made null and void.
The same contract eliminated a prior provision in the grievance section to the effect that
all mine disputes should be settled through the grievance procedure , and that there should
be no stoppage of work. It also eliminated a provision authorizing the Employer to refuse
to discuss a matter under dispute during illegal suspensions of work.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been seen , however, that following the umpire's decision, President Boyle told
employees on several different occasions that he would not permit Bartoletta to come back
to work . In addition he ordered Bartoletta off the premises on March 21 , under circum-
stances constituting - whatever^Boyle ' s actual intent - a threat of physical action.
Bartoletta ' s testimony , which I credit, is that the reason he did not appear for work on
March 22 was out of fear of Boyle . Under the circumstances , as Bartoletta and the em-
ployees know them , such a reaction was not an unreasonable one. But even if Bartoletta's
decision was motivated in part by reluctance engendered by the attempt to remove him as
checkweighman at the March 21 meeting , I do not think the Respondent aided thereby. The
conclusion is amply warranted that the substantial reason the union meeting was called on
that date was because of Boyles announced determination not to let Bartoletta go back
to work ; and his suggestion that the employees remove him . The employees were thus
faced with the alternatives of choosing another checkweighman , or of having the mine
closed . If, therefore , the sentiment of the men on March 21 was a factor in Bartoletta's
decision , the Respondent must bear the responsibility for it.
Finally, whether motivated by fear or not, Bartoletta ' s action in remaining away from work
on March 22 was the most sensible course for him to follow He and the employees had every
reason to conclude from Boyle ' s statements that if Bartoletta appeared , Boyle would not operate
the mine And whether Boyle opened it or not , the employees had determined not to work with-
out Bartoletta . In its context. Bartoletta ' s decision was thus a prudent one conducive to the
maintenance of production , however motivated
The Respondent further contends that in connection with the picketing of the other mines
in the area after February 20 , Bartoletta engaged in misconduct such as to bar him from
reinstatement . There is no substantial evidence to support this contention.
It is consequently found that by discharging John Bartoletta and refusing him access to
its property to perform his duties as union checkweighman , the Respondent prevented the
performance of those duties, caused Bartoletta ' s loss of employment as union checkweighman,
and deprived the Respondent ' s employees of their choice of checkweighman, because Barto-
letta had engaged in lawful and protected concerted activities with employees of the Re-
spondent and other employees for their mutual aid and protection , and that by that action
the Respondent interfered with, restrained , and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act , and discriminated in Bartoletta ' s hire , tenure, terms,
and conditions of employment , thereby discouraging membership in labor organizations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section in, above , occurring in connection with
its activities described in section I. above , have a close , intimate , and substantial relation
to trade, traffic , and commerce among the several States and tend to lead, and have led, to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
In order to remedy and dissipate the effect of the unfair labor practices found, remedial
action necessary to effectuate the policies of the Act will be recommended.
On and for a period of time after March 22, 1951, a member of the mine committee, John
Nestor, served as checkweighman temporarily in Bartoletta's place . About October 1951
a new checkweighman . Martin, an employee at the mine , was elected . Martin served until
February 1952 when, because of a slackening in work , the Union discontinued his services.
As is the custom when an employee becomes the union checkweighman and the latter job is
later discontinued , Martin Was restored on the Respondent ' s payroll as its employee. Had
Bartoletta continued to occupy the position of checkweighman it is to be anticipated that he
would have received similar treatment . The following remedial action will therefore be
recommended:
1. The Respondent shall notify Bartoletta and the Union that the Respondent has no objec-
tion to Bartoletta ' s employment as union checkweighman , and that it will permit him access
to the property for the purpose of performing such duties , without interference or threats.
2. The Respondent shall offer Bartoletta suitable employment if there is no employment
available for him as union checkweighman.
3. The Respondent shall make Bartoletta whole for any loss of wages as union check-
weighman for the period from February 26, 1951 , to the date in February 1952 when the
Union discontinued the checkweighman 's services , less Bartoletta ' s net earnings during that
period.
GLASS FIBER MOULDING COMPANY 383
4. The Respondent shall pay to the appropriate Federal and/or State agencies, to the
credit of Bartoletta and the Union , a sum of money equal to that which would have been
deposited to the credit of the Union and Bartoletta on account of social - security or other
similar benefits during the above - mentioned period . Pen and Pencil Workers Union, 91
NLRB 883.
5. The Respondent shall make Bartoletta whole for any loss of wages which he would
have earned as an employee of the Respondent from the date of the discontinuance of the
checkweighman's job in February 1952 to the date of the Respondent's offer of reinstate-
ment referred to in " 2" above, less his net earnings during that period.
6. The Respondent shall cease and desist from discharging or preventing employment of
Bartoletta or any other individual as union checkweighman , because he has engaged in union
or concerted activity protected by the Act ; from preventing the performance of the duties
of such position ; from refusing access to its property for such purpose ; and from refusing
employees their choice of union checkweighman ; or from engaging in any like or related
acts.
Upon the basis of the foregoing findings and conclusions and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Local Union No. 9769, United Mine Workers of America, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discharging John Bartoletta and refusing him access to its property to perform his
duties as union checkweighman , preventing the performance of those duties , and causing
Bartoletta 's loss of employment as union checkweighman , and depriving employees of their
choice of union checkweighman , under the circumstances heretofore recited, the Respondent
engaged in unfair labor practices within the meaning of Section 8 (a) (1) and 8 ( a) (3) of the
Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication. ]
GLASS FIBER MOULDING COMPANY AND AURCOLO MANU-
FACTURING COMPANY and AMERICAN FEDERATION
OF LABOR. Case No. 30-CA-196. April 27, 1953
DECISION AND ORDER
On September 10, 1952, Trial Examiner Herman Marxissued
his Intermediate Report in the above-entitled proceeding, find-
ing 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 copy of the Intermediate Report attached
hereto. He also set forth the applicable evidence and the
reasons on which he based his dismissal from the bench, at the
close of the General Counsel's case, of the allegations of the
complaint that the Respondents had refused to bargain in vio-
lation of Section 8 (a) (5) of the Act. Thereafter, the Respondents
and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner
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 the case, and hereby adopts the findings, conclusions,
104 NLRB No. 58.