Gibbs Corp.

National Labor Relations Board - Board Decisions

May 22, 1958

120 N.L.R.B. 1079 (N.L.R.B. 1958)

GIBBS CORPORATION 1079
Company, Inc., 114 NLRB 1034 ; and Broderick Wood Products Company, 118
NLRB 38. In these cases the Board found it appropriate and necessary to order
reimbursement of union dues and initiation fees collected pursuant to an unlawful
union-security clause. It is also true that in all of those cases the employer enforced
a checkoff provision . On occasion , the Board has refused to order reinbursement
of union dues collected by an employer on behalf of an illegally assisted union.
Cf. Bowman Transportation , Inc., 112 NLRB 387, 388, enfd . as modified 237 F.
2d 585 (C. A., D. C.), cert. granted as to another point, 353 U. S. 999. However,
in this case , despite the absence of a checkoff arrangement , collection of dues and
other union obligations were facilitated by the illegal union-security provisions in
the contract . Consequently , here, as in Brown-Olds and related cases cited , supra,
the parties to the illegal agreement should be held equally responsible for expunging
the effect of their unfair labor practices . I, therefore, find that it will effectuate the
policies of the Act to order the Respondent Union and the Respondent Employer,
jointly and severally, to refund to employees on the Mound City project all moneys,
dues, fees , and assessments collected pursuant to the unlawful agreement of
July 16, 1957.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Employer is engaged in commerce within the meaning of the
Act.
2. The Respondent Union is a labor organization within the meaning of Section
2 (5) of the Act, and Stanley Medley is an agent of said Union.
3. By discriminating with respect to the hire and tenure of employees, thereby
encouraging membership in the Respondent Union, the Respondent Employer has
engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act, Respondent Employer has engaged
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. By executing, maintaining, and enforcing a contract containing unlawful
union-security provisions, the Respondent Employer has violated Section 8 (a) (3)
of the Act and the Respondent Union and Respondent Medley by causing the
Employer to discriminate with respect to the hire and tenure of employees in viola-
tion of Section 8 (a) (3), have engaged in unfair labor practices within the
meaning of Section 8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guaranteed
by Section 7 of the Act, the Respondent Union and Respondent Medley have
engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.)
Gibbs Corporation and Industrial Union of Marine and Shipbuild-
ing Workers of America , AFL-CIO and Independent Workers'
Union of Florida, Party to the Contract
Independent Workers' Union of Florida and Industrial Union of
Marine and Shipbuilding Workers of America , AFL-CIO and
Gibbs Corporation , Party to the Contract . Cases Nos. 12-CA-40
and 19-CB-14. May 22, 1958
DECISION AND ORDER
Upon charges duly filed on February 11, 1957, and June 3, 1957, by
Industrial Union of Marine and Shipbuilding Workers of America,
120 NLRB No. 149.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, herein called the Marine Workers, the General Counsel
for the National Labor Relations Board, herein, called the General
Counsel, by the Regional Director for the Twelfth Region, issued
separate complaints dated July 3, 1957, against Gibbs Corporation,
herein called the Respondent Company, and Independent Workers'
Union of Florida, herein called the Respondent Union, alleging that
the Respondent Company had engaged in and was engaging'in unfair
labor practices affecting commerce within the meaning of Section 8
(a) (1), (2), and (3) and Section 2 (6) and (7) of the Act, and that
the Respondent Union had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8
(b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. On the
same day the Regional Director issued an order consolidating the
cases and noticing them for hearing. Copies of the complaints,
charges, and notice of hearing were duly served upon the Respondents
and the Charging Union.
With respect to the unfair labor practices, the complaints alleged
in substance that the Respondent Company and the Respondent Union
are parties to a collective-bargaining agreement containing a provision
which delegates to the Respondent Union ultimate control over
the seniority ranking of the employees of the Respondent Company.
The complaint against the Respondent Union further alleges that the
Union restrained and coerced employees by distributing, during
the Marine Workers' organizational drive, a circular stating that the
names of employees who signed authorization cards for the Marine
Workers would be revealed to the Respondent Company. On or about
July 9 and 11, respectively, the Respondents filed answers denying
that the facts alleged in the complaints constitute violations of the Act.
Thereafter, on July 15 and 16, 1957, the parties signed stipulations
whereby they agreed that the Board may find as true and correct the
facts contained in a "Stipulation of Facts" attached to the stipulations ;
that the parties waived a hearing, the issuance of an Intermediate
Report, and a proposed Decision and Order of the Board; and that
the Board may make findings of fact and conclusions of law, and may
issue its Decision and Order based thereon, as if the same facts had
been adduced in open hearing before a duly authorized Trial Examiner
of the Board. The stipulations further provided that the parties may
file briefs with the Board on or before August 19, 1957, and that the
entire record of the proceedings shall consist of the stipulations, the
order consolidating cases and notice of hearing, and copies of the
complaints, charges, answers, and the "Stipulations of Facts" attached
to the stipulations. ' '
By an order issued on August 9, 1957, the Board approved the afore-
said stipulations, made them a part of the record herein and trans-
ferred the proceedings to, and continued it before, the Board. Sub-
GIBBS CORPORATION 1081
sequently, the General Counsel, the Respondent Company, and the
Respondent Union filed briefs.
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 Leedom and Members
Rodgers and Bean].
Upon the basis of the aforesaid stipulations and the entire record
in the case, including the briefs filed by the parties, the Board makes
the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent Company, a Florida corporation with its principal
place of business located in Jacksonville, Florida, is engaged in the
business of building and repairing ships. In the 12-month period
ending December 31, 1956, the Respondent Company provided goods
or services directly related to national defense and valued at more
than $1,000,000 to the United States Navy.
The Respondent Company concedes, and we find, that it is engaged
in commerce within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
The Respondent Union is a labor organization within the meaning
of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
On March 29, 1954, the Respondent Company and the Respondent
Union entered into a collective-bargaining contract to be effective
until March 29, 1957. On January 9, 1957, prior to the expiration
date of this agreement the parties executed a new collective-bargaining
agreement effective until March 29, 1960. Both contracts contained
the following provision :
QUESTION OF SENIORITY
Any complaint regarding seniority status shall be referred to
the Seniority Board which shall consist of two (2) members
appointed by the Union and one (1) member appointed by the
Company. Decisions of the Board shall be by majority vote.
Neither contract contains any other provision for the disposition of
seniority complaints or for appeal from decisions of the Seniority
Board.
On or about November 10, 1956, the Charging Party, the Marine
Workers, commenced an organizational campaign among the em-
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees of the Respondent Company. During the course of this
campaign, the Marine Workers distributed literature urging employ-
ees to sign showing-of- interest cards for the Marine Workers so as to
enable the latter to file a representation petition with the Board. In
response to that literature , the Respondent Union, under the signa-
ture of its President Roy W. Gatz, distributed on January 22, 1957, a
leaflet-which reads in pertinent part as follows :
TO ALL PRODUCTION AND MAINTENANCE
EMPLOYEES-GIBBS CORPORATION
The last CIO propaganda sheet handed to you said that when
that union has "the required number in accordance with the
policy of our union, we Will file a petition"-another` example of
the lies this union is trying to fool you into believing. It is the
policy of the National Labor Relations Board which is stopping
the CIO. The Board requires 30% of the employees to be signed
up and the CIO admits it can't get that many ! This "union
policy" stuff is pure bunk !
Three years ago this same CIO bunch of hoodlums tried to
fool the NLRB and filed a petition stating that it had the
required 30%. The Board threw the CIO petition out as soon
as it was investigated-without even a hearing-because the CIO
couldn't back up its claim !
The way in which the CIO claims are checked requires that the
CIO furnish a list of the names of the employees of Gibbs
Corporation who have signed CIO cards. Upon submission of
this list, the names of the card signers become a matter of record.
This list is then checked by the Company and the Board. [Em-
phasis supplied.]
In answer to this leaflet, the Marine Workers, 2 days later, dis-
tributed its own leaflet stating, inter alia:
In the third paragraph of his letter, Gatz stoops to a new low.
He attempts to throw fear into the Gibbs workers by printing
something that he knows is far from the truth. In other words,
Roy Gatz is a Liar! He stated "that upon submission of a list
of names by our Union, the list is checked by the Company and
the National Labor Relations Board." Following is the procedure
required by the Board : "When we have a sufficient number of
-cards -to support a Petition for an election, we submit the cards
to the National Labor Relations Board. The Board then sub-
poenas the Gibbs Corporation pay roll list to determine the
validity of the signatures, and then return the cards to our union."
THE COMPANY NEVER SEES THE CARDS. THE ONLY
PERSONS TO SEE THE CARDS ARE ONE REPRE-
GIBBS CORPORATION 1083
SENTATIVE OF OUR NATIONAL UNION, AND THE
BOARD AGENT. THE COMPANY HAS NO WAY OF
FINDING OUT WHO SIGNS A CARD.
On February 7 and 8, 1957 , Marine Workers distributed another
leaflet which contained the following statement :
The Independent Workers Union of Florida , through its Pres-
ident, Roy Gatz, announced in one of its misleading and untrue
leaflets that the Company checks the list of cards submitted by
the CIO. This announcement also constitutes Unfair Labor
Practices within the meaning of the Act. Following is a Board
ruling in the case -of the Mascot Slowe Company of Chattanooga,
Tennessee , in which the Company attempted to obtain the names
of employees submitted by the Union in that case . Following
is the Board Ruling,
The employer contends that Section 9 (c) (1) of the Act
amended by the Labor Management Relations Act of 1947 per-
mits inquiry by the Employer at the hearing into the extent of
the Petitioners representation among employees in the unit it
seeks. WE FIND THIS CONTENTION TO BE WITHOUT
MERIT, AND THEREFORE AFFIRM THE HEARING
OFFICERS RULING REFUSING TO ALLOW THE EM-
PLOYER TO ELICIT THE INFORMATION AT THE
HEARING, FOR WE CAN PERCEIVE NOTHING IN THE
CITED PROVISIONS OF THE ACT WHICH PERMITS
SUCH INQUIRY BY THE EMPLOYER.
B. Contentions of the Parties
The General Counsel contends that the seniority provision gives
the Respondent Union ultimate control of the seniority ranking of
employees by virtue of its power to appoint a majority of the members
of the Seniority Board, thereby encouraging membership in the
Respondent Union. He further contends that the misleading state-
ment about examination of authorization cards by the Respondent
Company contained in the leaflet distributed by the Respondent Union
discouraged employees from joining the Marine Workers by instilling
in them the fear that their names would be revealed to both Respond-
ents. The Respondents defend by asserting that the Marine Workers
is not a party to the contract and has no standing to attack any of its
provisions, that the seniority clause is not unlawful per se, and that
the clause has never been enforced. In answer to the allegation based
upon the leaflet which it distributed, the Respondent Union separately
asserts that the language used was not untrue and than if it was sus-
ceptible of misunderstanding there is no evidence that any employee
was in fact misled by it. - -
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
1. In the Pacific Intermountain Express case,' the Board held that
a contract provision which gives to the bargaining agent the authority
to settle controversies relating to seniority is unlawful. The Board
said (at p. 845) :
We can therefore see no basis for presuming that when' an em-
ployer delegates to a union the authority to determine the senior-
ity of its employees, or even to settle controversies with respect
to seniority, such control will be exercised by the union in a
nondiscriminatory manner. Rather, it is to be presumed, we
believe, that such delegation is intended to, and in fact will, be
used by the union to encourage membership in the union. Accord-
ingly, the inclusion of a bare provision . . . that delegates com-
plete control over seniority to a union is violative of the Act
because it tends to encourage membership in the union.
This decision has won court approval and has been followed in
subsequent cases 2
In the present case, the settlement of controversies relating to
seniority is nominally entrusted not to the Respondent Union but to
a joint board composed of representatives of both the Company and
the Union. However, since the Union is guaranteed a majority of
the board's members, it is obvious that the Union in fact will deter-
mine seniority disputes. It is immaterial that the Respondents have
had no occasion to enforce the provision for the settlement of seniority
disputes. The mere existence of such a clause, apart from its enforce-
ment, is unlawful.' Accordingly, we find that by maintaining the
1954 contract, and by entering into and maintaining the 1957 agree-
ment, the Respondent Company violated Section 8 (a) (1), (2), and
(3), and the Respondent Union Section 8 (b) (1) (A) and (2) of
the Act.'
2. The leaflet distributed on January 22 by the Respondent Union
apparently misstated the procedure followed by the Board in checking
1107 NLRB 837, enforced as modified sub nom. N. L. If. B. v. International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, et al., 225 F. 2d
343 (C A 8).
2 North East Texas Motor Lines, Inc., et al., 109 NLRB 1147, enfd . sub nom. N. L. If. B.
v. Dallas General Drivers, Warehousemen and Helpers , Local Union 745, 228 F. 2d 702
(C. A. 5) ; Chief Freight Lines Company, 111 NLRB 22, enfd . sub nom. N. L. R. B. v.
Oklahoma City General Drivers, Warehousemen and Helpers , Local Union 888, 235 F. 2d
105 (C. A. 10) ; Minneapolis Star and Tribune Company, 109 NLRB 727, 737-738;
Kenosha Auto Transport Corporation, 113 NLRB 643, 645.
3 Chief Freight Lines Company , 111 NLRB 22,134.
A We find no merit in the argument of the Respondents that, as the Marine Workers is
not a party to the contract, it has no standing to file a charge alleging that the contract
contains unlawful provisions. This Is a public proceeding and not a private dispute be-
tween parties concerning contract terms. Any person may file a charge that other persons
are engaging In unfair labor practices affecting commerce. Board's Rules and Regula-
tions, Series 6, as amended, Sec. 102.9.
GIBBS CORPORATION 1085
authorization cards submitted by a labor organization in support of
a representation petition. Names submitted do not become a matter
of public record and are not made available to the employer for check-
ing. However, whatever the effect of this statement, it was, we believe,
dispelled by the prompt circulation of a counterstatement by the
Marine Workers outlining the correct procedure and assuring the
employees that the Respondent Company would never see the author-
ization cards which they had signed. Under the circumstances, we
find that the January 22 leaflet did not tend to restrain or coerce
employees in violation of Section 8 (b) (1) (A) of the Act. We
shall therefore dismiss this allegation of the complaint.
THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order that they cease -and desist therefrom
and take certain affirmative action necessary to effectuate the policies
of the Act.
As the Respondents have entered into and maintained collective-
bargaining agreements containing seniority provisions violative of
Section 8 (a) (1), (2), and (3), and 8 (b) (1) (A) and (2) of the
Act, we shall order them to cease giving effect to these unlawful pro-
visions and refrain in the future from concluding agreements con-
taining such unlawful seniority provisions. We shall, however, not
order the Respondents to cease giving'effect to other provisions of
the 1957 collective-bargaining agreement and we shall not order the
Respondent Company to withhold recognition from the Respondent
Union as the representative of these employees.'
CONCLUSIONS OF LAW
1. The Respondent Union is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. By entering into and maintaining agreements containing
provisions delegating to the Respondent Union authority to settle
controversies relating to seniority, the 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, and the
Respondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) and (2) of the
Act.
3. The unfair labor practices found herein are unfair labor
affecting commerce within the meaning of Section 2 (6) and (7) of the
Act.
6 See Paciflo Intermountain Express Company, 107 NLRB 827, 850, footnote 29.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Respondent Union has not engaged in unfair labor practices
within the meaning of the Act by its January 22 , 1957, distribution
of a leaflet to employees.
ORDER
Upon the basis of the entire record in these cases, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that:
1. The Respondent Company, Gibbs Corporation, Jacksonville,
Florida, its officers, agents, successors, and assigns, shall:
a. Cease and desist from :
(1) Performing or giving effect to the provision in its collective-
bargaining agreement with the Respondent Union which delegates
to that union authority to settle controversies relating to seniority.
(2) Entering into, maintaining, or renewing any agreement with
any labor organization which contains provisions delegating to such
labor organization authority to determine the seniority of employees
or to settle controversies relating to seniority, and enforcing such
provisions.
(3) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in Section 7
of the Act.
b. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Post at its place of business in Jacksonville, Florida, copies
of the notice attached hereto marked "Appendix A." 6 Copies of
the notice, to be furnished by the Regional Director for the Twelfth
Region, shall, after being duly signed by an official representative of
the Respondent Company, be posted by it immediately upon receipt
thereof, and remain posted for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent Company to insure that these notices are not altered,
defaced, or covered by any other material.
(2) Notify the Regional Director for the Twelfth Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
2. The Respondent Union, Independent Workers' Union of Florida,
its officers, representatives, agents, successors, and assigns, shall:
a. Cease and desist from :
(1) Performing or giving effect to the provision in its collective-
bargaining agreement with the Respondent Company which delegates
to the Respondent Union authority to settle controversies relating
to seniority.
9 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."
GIBBS CORPORATION '1087
(2) Entering into, maintaining, or renewing any agreement, with
any employer which contains provisions delegating to the Respondent
Union the authority to determine the seniority of employees or to
settle controversies relating to seniority, or enforcing such provisions.
(3) In any like or related manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act.
b. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(1) Post at its business offices and meeting halls in Jacksonville,
Florida, copies of the notice attached hereto marked "Appendix,B." °
Copies of the notice, to be furnished by the Regional Director for the
Twelfth Region, shall, after being duly signed by an official repre-
sentative of the Respondent Union, be posted by it immediately upon
receipt thereof and remain posted for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken by
the Respondent Union to insure that these notices are not altered,
defaced, or covered by any other material.
(2) Mail signed copies of the notice attached to this Order as
"Appendix B" to the Regional Director for the Twelfth Region, for
posting, at the Respondent Company's shipyard, the Company willing,
for sixty (60) consecutive days, in places where notices to employees
are customarily posted. Copies of the notice to be furnished by the
Regional Director for the Twelfth Region, shall be returned forthwith
to the Regional Director after they- have been signed by an official
representative of the Respondent Union for such posting.
(3) Notify the Regional Director for the Twelfth Region, in writ-
ing, within ten (10) days from the date of this Order, of the steps
it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent Union violated Sec-
tion 8 (b), (1) (A) by distributing its January 22,1957, leaflet.
7 See footnote 6, supra
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 National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT perform or give effect to the provision in our
collective-bargaining agreement with Independent Workers
Union of Florida which delegates to that union authority to
settle controversies relating to seniority.
.WE WILL NOT enter into, maintain, or renew any agreement with
any labor organization which contains provisions delegating to
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such labor organization authority to determine the seniority of
employees or to settle controversies relating to such seniority.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guaranteed
in Section 7 of the Act.
GIBBS CORPORATION,
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.
APPENDIX B
NOTICE TO ALL EMPLOYEES AND TO ALL OUR MEMBERS
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, as amended, we hereby notify our members that :
WE WILL NOT perform or give effect to the provision in our
collective-bargaining agreement with Gibbs Corporation, Jack-
sonville, Florida, which delegates to us authority to settle
controversies relating to seniority.
WE WILL NOT enter into, maintain, or renew any agreement
with any employer which contains provisions delegating to us
the authority to determine the seniority of employees or to settle
controversies relating to seniority.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act.
INDEPENDENT WORKERS UNION OF FLORIDA,
Union.
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.
W. B. Uhlhorn, General Contractor and Will J . Ney, Jr.
Local 14, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO and Will J. Ney, Jr. Cases Nos. 39-CA-
635 and 39-CB-166. May 22, 1958
DECISION AND ORDER
On July 18, 1957, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in this proceeding finding that the Respondents
120 NLRB No. 148.