Credill Minter, Robert Linton, et al.

National Labor Relations Board - Board Decisions

Aug 21, 1969

178 N.L.R.B. 189 (N.L.R.B. 1969)

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