Local No. 156

National Labor Relations Board - Board Decisions

Mar 20, 1957

117 N.L.R.B. 670 (N.L.R.B. 1957)

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specific classifications, in the wage section of the agreement handymen
are not mentioned. It would seem, therefore, that the current bar-
gaining agreement does not include this classification of personnel.
On the record as a whole and by reason of the foregoing, we find
that the handymen are supervisors within the meaning of the Act, and
we shall exclude them from the unit herein found to be appropriate.
Accordingly, we find that the following employees employed on all
ships owned and/or operated by the Employer, whose main offices are
located at Cleveland, Ohio, constitute an appropriate unit for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act : All unlicensed personnel excluding the handymen, stew-
ards, licensed personnel, and all other supervisors as defined in the Act.
5. As heretofore stated, the Employer has curtailed the operations
of its lake vessels for the winter season to such an extent that a repre-
sentative vote is presently not possible. Moreover, the exact date for
resumption of the normal operation of the Employer's vessels cannot
be determined at this time. Under these circumstances, and in ac-
cordance with our usual practice with respect to seasonal industries,
we shall direct that the election be held upon the resumption of op-
erations of the Employer's vessels on a date when a representative
number of employees is determined by the Regional Director to be
employed by the Employer in the appropriate unit. Employees
eligible to vote shall be those employed on the day immediately pre-
,ceding the date of issuance of the notice of election 5 Also, in accord-
ance with the Board's general practice in directing elections among
employees on seagoing vessels, we shall leave the method of voting
to the discretion of the Regional Director. Consistent with such prac-
tice we hereby vest in the Regional Director discretion to determine
the exact time and place and procedure for conducting the election .6
[Text of Direction of Election omitted from publication.]
MEMBER MIRDOCK took no part in the consideration of the above
Decision and Direction of Election.
6 Schneider Transportation Company, 75 NLRB 870, 872; Bob Saunders Company,
103 NLRB 307.
6 Pacific Maritime Association, 110 NLRB 1647.
Local No. 156, United Packinghouse Workers of America, AFL-
CIO; District #4 Council, United Packinghouse Workers of
America, AFL-CIO; and, United Packinghouse Workers of
America, AFL-CIO and Du Quoin Packing Company . Case No.
14-CB-379. March 20,1957
DECISION AND ORDER
On July 30, 1956, Trial Examiner Eugene E. Dixon issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
117 NLRB No. 105.
LOCAL NO. 156 671
Respondent, Local No. 156, United Packinghouse Workers of America,
AFL-CIO, had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondents, District #4 Council, United Packinghouse Workers
of America, AFL-CIO, and United Packinghouse Workers of
America, AFL-CIO, did not engage in the unfair labor practices
alleged in the complaint and recommended dismissal of the complaint
with respect to them. Thereafter, the Respondent Local and Du
Quoin Packing Company, the Charging Party, filed exceptions to the
Intermediate Report and supporting briefs.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the exceptions, modifications,
and additions noted below.
We agree with the Trial Examiner that the Respondent Local
violated Section 8 (b) (3) of the Act by striking, without first giving
the State agency the 30-day notice required by Section 8 (d) (3) of
the Act.' In so doing, we find, contrary to the Respondent Local's
contention, that the Trial Examiner properly struck from the answer
the allegations that the Company's refusal to bargain in good faith
caused the employees to go out on strike and properly excluded
evidence in support of these allegations.
In addition to the struck allegations, the Respondent also admitted
in its answer that it called "a strike on the issue of wages only." In
I Insofar as relevant, Section 8 (d) provides
That where there is in effect a collective-bargaining contract covering employees
in an industry affecting coinmeice, the duty to bargain collectively shall also mean
that no party to such contract shall , modify such contract, unless the party
desiring such modification-
(1) serves a written notice upon the other party to the contract of the
proposed modification sixty days prior to the expiration date thereof, of
in the event such contract contains no expiration date, sixty days prior to the
time it is proposed to make such modification
R t k • k R !
(3) notifies the Federal Mediation and Conciliation Service within thirty
days aftei such notice of the existence of a dispute, and simultaneously there-
with notifies any State or Territorial agency established to mediate and con-
ciliate disputes within the State of Territory where the dispute occurred,
provided no agreement has been reached by that time. and
(4) continues in full force and effect, without resorting to strike or lockout,
all the terms and conditions of the existing contract for a period of sixty days
after such notice is given or until the expiration date of such contract, whichever
occurs later
Contrary to the Respondent Local's contention, we find that the prohibition on strikes
for 60 days after notice of modification provided in Section 8 (d) (4) contemplates
that the 30-day notification to the Federal Mediation and Conciliation Service and the
State agency be also given as prescribed in Section 8 (d) (3)
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the course of its argument at the hearing in opposition to the General
Counsel's motion to strike, the Respondent contended that it was the
employees' resentment over the Company's attitude that actually
caused many of the employees to go out on strike, "although our call'
for the strike was solely on the issue of wages." [Emphasis supplied.]
In its brief, the Respondent further argues that the excluded evidence
would have established that the "strike over wages" was caused by the
Company's unlawful refusal to bargain in good faith and that there-
fore the Company was not entitled to the benefits of a remedial order.
As we interpret the Respondent's position, the Respondent concedes
that at least one of the objects of its strike was to secure a modification
of wage rates in the contract. In such circumstances, we find that the
Respondent's duty was plain-to comply with the requirements of
Section 8 (d) -regardless of the fact that it might have had another
reason for striking. As the Respondent failed to give the 30-day
notification to the State agency before striking as required by that
section, we find, as did the Trial Examiner, that the Respondent Local
violated Section 8 (b) (3).2
In disagreement with the Trial Examiner, however, we find that the
Respondent International was also responsible for the foregoing
unfair labor practices. As found by the Trial Examiner, the Respond-
ent International was the Local's duly authorized agent to renegotiate
wages. It served the first notice to reopen the contract on the Com-
pany. It also served notice on the Federal Mediation and Concilia-
tion Service that no agreement had been reached, and the belated
notice on the State agency. Moreover, not only was the Interna-
tional's district director present when the Local voted the final call
for the strike, but the International had previously given the Local its
approval to strike. It is thus clear that the International's authority
as agent for the Local encompassed the duty of giving the 30-day
statutory notice to the State agency. Therefore, by failing to give the
required timely notice and by participating in the strike action taken
against the Company, we find that the International, as agent of the
Local, refused to bargain in violation of Section 8 (b) (3) .3
We further find, in accordance with Board policy, that it would
effectuate the policies of the Act to order both the Respondent Local
and the Respondent International, as agent, to cease and desist from
the unfair labor practices herein found and to take the affirmative
action directed in our Order below.
2 In view of our deter urination herein, we need not decide vv hethei the notice require-
ments of Section 8 (d) would be applicable if the strike here had been called solely in
protest to the Employer's refusal to bargain in good faith over the modification of wage
rates
3 Section 8 ( b) makes it an "unfair labor practice for a labor organization or its
agents . (3) to refuse to bargain collectively with an employer, provided it is the
representatise of his employees subject to the provisions of section 9 (a) "
LOCAL NO. 156
ORDER
673
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Local No. 156,
United Packinghouse Workers of America, AFL-CIO, its agent, the
Respondent United Packinghouse Workers of America, AFL-CIO,
and their officers, representatives, agents, successors , and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Du Quoin Packing
Company concerning the termination or modification of the Re-
spondent Local No. 156's agreement with said Company by failing to
notify, before striking, the Illinois Department of Labor or any other
appropriate State agency, and the Federal Mediation and Concilia-
tion Service of the existence of a dispute within the meaning of
Section 8 (d) (3) of the Act within 30 days after service of notice
upon Du Quoin Packing Company that the Respondent Local No. 156
seeks or desires modification of a collective-bargaining contract.
(b) Engaging in, or calling or causing the employees of Du Quoin
Packing Company to engage in, a strike, without first having complied
with the requirements of Section 8 (d) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their business offices,copies of the notice attached hereto
and marked "Appendix."' Copies of said notice, to be furnished by
the Regional Director for the Fourteenth Region, shall, after being
duly signed by official representatives of the Respondents, be posted by
the Respondents immediately upon receipt thereof, and be maintained
by them for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to their members are cus-
tomarily posted. Reasonable steps shall be taken by the Respondents
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Furnish to the Regional Director for the Fourteenth Region
signed copies of the notice attached hereto and marked "Appendix,"
for posting, the Company willing, at Du Quoin Packing Company's
plant in places where notices to employees are customarily posted.
The notices shall be maintained there for a period of sixty ( 60) con-
secutive days thereafter. Copies of said notice, to be furnished by
the Regional Director for the Fourteenth Region, shall, after being
duly signed by official representatives of the Respondents as provided
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 Older" the
words "Pursuant to a Deciee of the United States Court of Appeals , Enforcing an Order "
423784--57-vol. 117--4 4
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in paragraph 2 (a) of this Order, be forthwith returned to the
Regional Director for such posting.
(c) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10 ) days from the date of this Order, as to the
steps they have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint , insofar as it alleges that
the Respondent , District #4 Council , United Packinghouse Workers
of America , AFL-CIO, violated the Act, be, and it hereby is,
dismissed.
'MEMBER MURDOCK took no part in the consideration of the above
.Decision and Order.
APPENDIX
NOTICE TO MEMBERS AND ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, as amended, we hereby notify our members and
employees of Du Quoin Packing Company that:
WE WILL NOT refuse to bargain collectively with Du Quoin
Packing Company concerning the termination or modification of
the Respondent Local No. 156's agreement with said Company,
by failing to notify, before striking, the Illinois Department of
Labor or any other appropriate State, agency, and the Federal
Mediation and Conciliation Service of the existence of a dispute
within the meaning of Section 8 (d) (3) of the Act within 30
days after service of notice upon Du Quoin Packing Company
that we seek or desire to modify a collective-bargaining
agreement.
WE WILL NOT engage in, or call or cause the employees of Du
Quoin Packing Company to engage in, a strike without first hav-
ing complied with the provisions of Section 8 (d) of the Act.
LOCAL No. 156, UNITED PACKINGHOUSE
WORKERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By--------------------------------------
(Representative ) ( Title)
UNITED PACKINGHOUSE WORKERS OF
AMERICA, AFL-CIO,
Labor Organization.
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.
LOCAL NO. 15 6
INTERMEDIATE REPORT AND RECOMMENDED ORDER
675
STATEMENT OF THE CASE
Upon charges duly filed by Du Quoin Packing Company, herein called the Com-
pany, the General Counsel of the National Labor Relations Board, herein called the
General Counsel and the Board, respectively, by the Board's Regional Director for
the Fourteenth Region, issued a complaint dated May 9, 1956, against Local No. 156,
United 'Packinghouse Workers of America, AFL-CIO; District #4 Council, United
Packinghouse Workers of America, AFL-CIO; and United Packinghouse Workers
.of America, AFL-CIO, herein called Respondents, alleging that they had engaged
in and were engaging in unfair labor practices within the meaning of Section 8 (b)
(3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
herein called the Act.
With respect to the unfair labor practices, the complaint alleges that by calling
a strike at the Company's plant and causing the employees to go out on strike without
serving notice on the Illinois Department of Labor as required by Section 8 (d) (3)
of the Act, Respondents refused to bargain, thus violating Section 8 i(b) 1(3) of the
.Act. -
In their answer Respondents deny the commission of any unfair labor practices
and further deny that Section 8 '(d) (3) required notice to the Illinois Department
of Labor and that if, under the facts of the case, Section 8 (d) (3) be interpreted
to require such notice, such interpretation would violate the 1st and 5th amendments
to the Constitution of the United States.
Pursuant to notice, a hearing on the-matter was held at Du Quoin, Illinois, May
29, -1956, before a duly designated Trial Examiner. At the beginning of the hearing
the General Counsel moved to amend the description of the bargaining unit in the
complaint and also to strike an allegation that Section 8 (b) (1) (A) of the Act had
been violated. The motions were granted without objection. The General Coun-
sel also moved to strike a portion of Respondents' answer which was granted in part,
over objection.'
Various motions were made by Respondents to dismiss the complaint in its entirety
and as to the District #4 Council and the International. They were denied. A
motion by the Charging Party to quash certain subpenas was granted. All parties
were represented at the hearing and, subject to the foregoing rulings, were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to introduce
evidence, to argue orally on the record and to file briefs which were duly filed by the
Charging Party and Respondents.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Du Quoin Packing Company is a Delaware corporation with its principal place of
business and office located in Du Quoin, Illinois. It is engaged in meat packing,
slaughtering, and distribution of food products. During the year 1955 the Company
sold and shipped to customers outside the State of Illinois some $66,000 worth of
hides and $51,000 worth of tallow. Although these sales and shipments were made
up only of byproducts of its main business activity and although none of the em-
ployees connected with the processing and handling of the byproducts in question
may have been in the unit represented by Respondent Local 156, and although none
of the Company's other products are sold in States other than Illinois, I find that the
Company is engaged in commerce within the meaning of the Act.2
II. THE LABOR ORGANIZATIONS INVOLVED
It was stipulated and I find - that Local No. 156, United Packinghouse Workers of
America, AFL-CIO, and its parent body, United Packinghouse Workers of America,
AFL-CIO , are labor organizations within the meaning of the Act.
The evidence shows that the International is divided- into geographical districts,
District 4 encompassing Kansas, Missouri , and the East St. Louis, Illinois, area.
Each district has a district council which adopts its own constitution and is chartered
by the International. District #4 Council was established about 1943. All local
I Stricken from the answer as a result of this ruling was the allegation that the strike
was caused by the Company's failure to bargain in good faith
'Jonesboro Grain Drying Cooperative, 110 NLRB 481, N L R B v Dallas City
Packing Company, 230 F 2d 708 (C A 5)
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unions of UPWA in its jurisdictional area are supposed to belong to District #4
Council and Local 156 is a member. The Council collects per capita taxes from
the locals. Some of its objectives as set forth in its constitution are "to coordinate
the work of all the locals in the District, to create united action in the interest of
the locals and the membership, to assist in the organization of the unorganized .
to participate in all labor actions for mutual protection and benefit . . . to work
with like-minded groups to do whatever may be necessary to accomplish these
objectives." The Council also maintains a strike fund for the assistance of any of
the striking locals. It renders various services to the locals 3 and acts as advisor
and consultant to them.
Each district is headed by a district director elected at the International conven-
tion. As provided in the International constitution, "It shall be the duty of the Dis-
trict Director, in addition to his duties as a member of the International Executive
Board, to work in conjunction with the International officers and departments in
order to assure proper coordination between activities in the District and the Inter-
national Union. He shall serve as chairman of the District Council, preside over
all its meetings, and act as ex-officio member of all committees appointed or elected
by the Council."
It is clear from the foregoing that District #4 Council is a labor organization
within the meaning of the Act. I sofind.
III. THE UNFAIR LABOR PRACTICES
For a number of years the Company has recognized Respondent Local 156 as the
bargaining representative of the Company's production, maintenance, and delivery
employees employed in and about the Company's plant at Du Quoin, Illinois, ex-
cluding salaried employees, watchmen, guards, confidential clerical employees, steno-
graphic employees, route peddling employees, farm employees, and supervisors. On
April 29, 1955, the Company and Local 156 entered into a collective-bargaining
agreement effective April 14, 1955, for a 2-year period with 1-year reopening clause
on wages only. Pursuant to this clause Kermit H. Fry, director of District 4, wrote
the Company on February 1, 1956,4 notifying it of the desire of Local 156 to reopen
the agreement for wage discussions. This letter was written on stationery headed:
UNITED PACKINGHOUSE WORKERS of America
Affiliated with Congress of Industrial Organization
District No. 4
9371/2 Minnesota Avenue Telephone Atwater '6967-6968
Kansas City 1, Kansas
District No. 4 Kermit H. Fry
Kansas, Missouri, including Director
East St. Louis, Illinois, area -
Teletype Ke KAN 1046
The letter was signed by Fry as director of District No. 4 UPWA-AFL-CIO.
On February 9, another letter on plain stationery was written to the Company
signed by the president of Local 156, Kenneth Hawk, and three other members of
its negotiating committee, also informing the Company of the Local's desire to
reopen the contract on wages. The letter concluded with this paragraph: "We the
undersigned and our International are ready for a meeting any time convenient to
both parties after the date of Feb. 14, 1956."
In its first regular meeting in February the Local had voted not to negotiate with-
out an International representative present. This decision was made known to
the Company sometime prior to April 9.5 Apparently it was in this same meeting
that the Local also voted authorization for a strike. Shortly thereafter, the Local
received approval of its strike vote from the International as required by the Inter-
national constitution.
The first meeting between the Company and the Union growing out of the re-
opening request took place about March 1. Other meetings followed on March
3 For example, a document addressed to "Dear Homemakei" explaining the Union's
controversy with the Company on wages was prepared by the Council for Local 156.
4 All further dates are in 1956 unless otherwise noted
The Company was also told that "any arrangement for future meetings would have
to be made through \Ir Fisher's office, Dir Fry's office and not with the Local committee
as had been the practice in the past " (Fisher was an assistant to the president of
the International )
LOCAL NO. 156 677
S, March 29, and April 12. In addition to the four local members on the negotiat-
ing committee there were Fisher, assistant to the president of the International,
and Fry, District 4 director . In one of the meetings a wage scale man from the
International was also present . Fisher and Hawk, the Local 's president, were the
spokesmen for the committee but all the members had equal rights to speak and no
member had any greater right than any other.
On April 9 that part of the negotiating committee consisting of the Local mem-
bers of the committee were called in by the Company and offered a sealed envelope
containing a Company proposal for consideration of the negotiating committee be-
fore the next meeting which was scheduled for April 12 . Because of their position
against negotiations by anything less than the full committee, Hawk refused to
accept the envelope and called Fry in Kansas City about the matter. Fry advised
the Local to "accept it and bargain with the Company," which apparently was done,
the last meeting, as indicated, taking place on April 12.
At midnight April 14 the employees struck. The final decision to strike was
made in the afternoon of April 14 by the executive board of the Local. Fry, who
has no vote on the executive board, was present when the decision to strike was
made.
Previously on March 13, Fry, signing as district director, had sent a notice to the
Federal Mediation and Conciliation Service on its official form FMCS F-7 which,
while not using the word "dispute," indicated the existence of a dispute between
the Company and Local 156 as to contract terms .6 It was not, however, until April
23 that the Illinois State Department of Labor was notified that a contract dispute
existed between the Company and the Union. That notice was on the letterhead
of Local 156 and was signed by Fry as district director. On April 24 the Illinois
Department of Labor acknowledged the Union's notification and informed Local 156
not to hesitate to call on it if it felt the "Illinois Conciliation Service can be of
assistance." Apart from this acknowledgment the Illinois Department of Labor
took no action in the dispute whatsoever.
The strike was still in progress at the time of the hearing before me. It is admitted
and the evidence shows that the strike was called on the issue of wages only?
The strikers were receiving benefits from both the International and from District #4
Council. It is clear that all the communications herein signed by Fry were made
with the full knowledge and consent of Local 156.
Conclusions
The pertinent part of Section 8 (d) provides
. .. That where there is in effect a collective-bargaining contract covering
employees in an industry affecting commerce, the duty to bargain collectively
shall also mean that no party to such contract shall terminate or modify such
contract, unless the party desiring such termination or modification-
(1) serves a written notice upon the other party to the contract of the
proposed termination or modification sixty days prior to the expiration
date thereof , or in the event such contract contains no expiration date,
sixty days prior to the time it is proposed to make such termination or
modification;
(3) notifies the Federal Mediation and Conciliation Service within
thirty days after such notice of the existence of a dispute, ... provided no
agreement has been reached by that time;
(4) continues in full force and effect, without resorting to strike or lock-
out, all the terms and conditions of the existing contract for a period of
sixty days after such notice is given or until the expiration date of such
contract, whichever occurs later:
9 The form is headed "Notice to -Mediation Agencies" and cleaily indicates it is for use
not only in notifying the Federal agency but also the "appropriate State or Territorial
agency " The notice besides naming the parties and giving certain data about them
makes this declaration "You are notified that to date no agreement has been reached
in the negotiation of a collective bargaining contract between the parties listed below."
7 As indicated, I struck fi oni Respondents' answer the allegation that the Company's
refusal to bargain caused the strike and would not permit Respondents to adduce evidence
to prove the contention I do not interpret the above admission or finding as being con-
sistent with or inimical to Respondents' contention that the strike was caused by the
Company's refusal to bargain because it is obvious that if the Company refused to bar-
gain it had to be on the issue of wages since that was the only subject before the parties.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 13 of , the Act provides: -
Nothing in this Act, except as specifically provided for herein , shall be con-
strued so as either to interfere with or impede or diminish in any way the right
to strike , or to affect the limitations or qualifications on that right.
As indicated , the General Counsel in his complaint -has alleged that the "Respond-,
ent Unions failed to serve timely notice upon the Illinois Department of Labor" as
required 'by Section 8 (d) (3) of the Act and "called , a strike and caused all the
employees of the Company at its Du Quoin , Illinois, plant to go out on strike," thus
violating Section 8 (b) (3) of the Act. ,
The evidence herein shows and I find that the notice required by Section 8 (d) (3)
was not given to the State Department of Labor and that a strike occurred. within
the period during which the notice should have been given . Two questions arise-
(1) Do these facts constitute a violation of the Act? ( 2) If they do , are all the
Respondents named herein responsible and liable for them? In support of an affirma-
tive contention as to ( 1), reliance is placed on Retail Clerks International Associa-
tion, Local No. 1179, AFL, and Esther Luther , Agent (California Association of
Employers for and in behalf of J. C. Penney Company ), 109 NLRB 754. In that
case there was a 2-year contract in effect with a similar reopening clause as here
(i. e., 60 days' notice to the other party prior to the end of the first year of the con-
tract's duration ). The Union gave the required notice to the Company and a series
of bargaining conferences followed . Not satisfied with the progress of the negotia-
tions, the Union struck without having notified the Federal Mediation and Concilia-
tion Service as required by Section 8 ( d) (3) of the Act. Subsequently the Union
did notify the Federal agency. At the time of the hearing that agency had been in
receipt of the Union 's notice more than 30 days and the stoke had been in progress
some 6 or 7 months . The Trial Examiner held (and the Board agreed ) that by
failing to serve notice on the Federal agency the Union committed an unfair labor
practice within the meaning of Section 8 ( b) (3) of the Act. He also held that
"the strike was nevertheless lawful , because he considered notice to the Federal
agency to be only an ancillary aspect of the 8 (d) notice requirements ." With this
latter conclusion the Board did not agree. Reversing the Trial Examiner on this
point the Board held that the Union also violated Section 8 (b) (3) of the Act by
engaging in strike action before properly serving notice on the Federal Mediation
and Conciliation Service.
I agree with the General Counsel that the J. C. Penney case is in point and con-
trolling on the facts here.8 That the notice here involved a State agency rather than
the Federal agency does not permit a contrary conclusion either by a literal reading
of Section 8 (d) (3) or by anything appearing in the legislative history of the Act.
Indeed, any differentiation in emphasis or significance as to any of the mandatory
provisions of Section 8 (d) could hardly be permitted in view of this statement by
the Board in the J. C. Penney case
We find no warrant for a holding that the notice to the Mediation Service is
a mere subordinate or "ancillary " aspect of the statute . There is nothing to
indicate that Congress regarded this mandatory requirement as • less significant
than any other of the mandatory provisions of Section 8 (d), and it would, in
our opinion, be presumptuous of an administrative agency to accord more or
less significance to particular statutory requirements which , from all that appears
on the face of the statute , Congress intended should be accorded equal dignity.
It is not incumbent on us to determine which of the several parts of Section 8
(d) Congress deemed most essential to accomplish the legislative purpose. It
is enough that each has been specifically set out as a part of a single congressional
objective-which was, of course , to provide more peaceful and stable labor
relations-and it is our responsibility to give full force and effect to the whole
statutory scheme.
This also disposes of Respondents ' claim that notice to the State agency is not re-
quired because of its practice to take no affirmative action solely on the basis of the
notice.
In addition to the two defenses of Respondents adverted to in footnote 8, Re-,
spondents also raise certain constitutional defenses . These, of course , are not ques-
Specifically disposed of in the J . C. Penney case are two defenses raised by Respond-
ents here-(1) that no dispute existed upon which notice had to be predicated and
(2) that all that was required here was the 60-day notice to the opposing party
LOCAL NO. 156 679,
tions' upon which the Board will pass judgment .9 As to the contention that there was
no showing that the Illinois Department of Labor was or had within it an "agency
established to mediate and conciliate" labor disputes, judicial notice can be taken of
that fact. 10
One remaining defense or contention needs comment-that is that it was error
to strike from Respondents' answer the allegation that the strike was caused by the
Company's refusal to bargain, and also error subsequently to exclude evidence!
offered to prove that point.
The original answer contained this statement:
it was the actions of - the Company including the failure of the Company
to bargain in good faith' which caused the employees of the Company to go
out on strike., Respondents further aver that the Company entailed its opera-
tions and commenced to shut down its operations in advance of April 14, 1956.
The General Counsel moved to strike the entire statement. 1 granted the motion
only as to the words "including the failure of the Company to bargain in good faith"
leaving "the actions of the Company" as part of the answer upon which proof
could be offered as I indicated in my ruling. Examining Respondents' contention,
I am satisfied that my ruling is in accord with the decision of the Supreme Court
in Mastro Plastics Corp. v. N. L. R. B., 350 U. S. 270. There, the Court held that
neither a no-strike clause in a contract nor Section 8 (d) of the Act makes illegal
a strike solely against unfair labor practices of an employer. The strike in that
case was caused solely by the discriminatory discharge of an employee. The key
to a proper interpretation of Section 8 (d) of the Act in this connection as originally
found by the Board and affirmed by the Supreme Court involves the words "termi-
nation or modification." As pointed out by the Court, "since the Board expressly
found that the instant strike was not to terminate or modify the contract, but was
designed instead to protest the unfair labor practices of petitioners, the loss-of-
status provision of Section 8 (d) is not applicable. We sustain that interpretation."
[Emphasis in original.] In the case at bar it is clear that whatever additional motiva-
tion there may have been, the strike grew out of and was directly connected with
the Union's desire to modify the contract as to wages as is admitted in the answer.
On the basis of the foregoing it is clear and I find that the Local, by its failure
to notify the State agency and by striking, violated Section 8 (b) (3) of the Act
as alleged.
The Liability of the International and the District Council
The.only evidence connecting District #4 Council with Local 156 is the "Dear
Homemaker" letter on a District 4 letterhead (but sent and signed by the Local),
and the fact that strike benefits were being given to the Local by the Council. These
facts do not establish the Council as an agent of the Local nor in any other way estab-
lish liability on the part of the Council for the unfair labor practices found herein. The
communications to the Company and the mediation agencies by Fry were signed
by him in his capacity as director of the district, not as chairman of the Council.
Since the director is a creature of the International and is a member of the Inter-
national executive board, it is clear that Fry's activity on behalf of the Local can
only serve to involve the International in the affairs of the Local, not the District
Council. On the basis of Fry's activities on behalf of the Local, and the Local's
insistence on the aid and presence of International representatives in its negotiations
with the Company, I find the International to have been an agent of the Local at
all times material here.
It has been found that the failure to notify the Illinois Department of Labor of
the desire to modify the contract as required in Section 8 (d) (3) of the Act and,
the connected strike were violations of the Act within the meaning of Section 8 (b)'
(3). Notwithstanding that I have also found that the International was the agent
of the Local at all times material herein, I further find that the International cannot
be held liable for the unfair labor practices found.
The collective-bargaining agreement here is solely between the Company and
Local 156. As pointed out by Respondents in their brief, "Section 8 (d) expressly
provides that 'no party to such contract' shall modify it without giving 30-day notice
to the State agency. Neither the United Packinghouse Workers of America, AFL-
CIO nor its District #4 Council are 'parties' to the contract between the Company
and Local 156. Therefore, the Act puts no duty upon them to notify the State
DL'L A. No. 1351, Steamship Clerks and Checkers, Independent (Rothermal Brothers),
108 NLRB 712, 715.
10 See Illinois Annotated Statutes, chapter, 10, sections 20 to 30, and chapter 127,
section 43.
680 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
agency and failure by them to notify that agency cannot constitute a violation on
their part of Section 8 (d) or 8 (b) (3)." I agree.ii
Nor does the strike itself attach any liability to the International under the Act.
There is no evidence that the International "called" the strike or "caused" it. The
strike was voted by the membership of the Local and called by its executive board.
That the International approved the strike and paid strike benefits does not alter
this conclusion. Moreover, as pointed out in Respondents' brief, "Section 8 (b)
(3) provides that it shall be unfair labor practice for a labor organization to refuse
to bargain collectively with an employer provided it is the representative of his
employees subject to the provisions of Section 9 (a). In accordance with the pro-
visions of Section 9 (a), the only representative selected for the purpose of collective
bargaining by the majority of the Company's employees is Local 156. It is not the
International union or its District #4 Council. Since the only labor organization
which can be found to have committed an unfair labor practice by refusing to
bargain collectively is the `representative' of the Company's employees, as defined
in Section 9 (a), and since the only such representative is Local 156, it is clear that
neither the International union nor its District #4 Council can possibly have violated
Section 8 (b) (3) by refusing to bargain collectively with the Company." Accord-
ingly, I shall recommend that the complaint be dismissed as to the International
and as to District #4 Council.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, Local No. 156, United Packinghouse Workers of
America, AFL-CIO, set forth in section III, above, occurring in connection with
the operations of Du Quoin Packing Company, 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 to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent Local No. 156, United Packinghouse Workers of
America, AFL-CIO, violated Section 8 (b) (3) of the Act by failing to notify the
Illinois Department of Labor as required by Section 8 (d) (3) of the Act and by
going on strike as found herein, I shall recommend in accordance with the J. C.
Penney case that Respondent cease and desist from such action and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and the entire record in this pro-
ceeding, I make the following:
CONCLUSIONS OF LAW
1. Local No. 156, United Packinghouse Workers of America, AFL-CIO, District
#4 Council, United Packinghouse Workers of America, AFL-CIO, and United
Packinghouse Workers of America, AFL-CIO, are, and at all times material herein
have been, labor organizations within the meaning of Section 2 (5) of the Act.
2. Du Quoin Packing Company is, and at all times material has been, an em-
ployer within the meaning of Section 2 (2) of the Act.
3. All production, maintenance, and delivery employees at said Employer's Du
Quoin, Illinois, plant, excluding salaried employees, watchmen, guards, confidential
clerical employees, stenographic employees, route peddling employees, farm em-
ployees, and supervisors, constitute, and at all times material herein have constituted,
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 ^(b) of the Act.
4. Local No. 156, United Packinghouse Workers of America, AFL-CIO, is, and
at all times material herein has been, the exclusive representative of the employees
in the above appropriate unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with the Company as found in section III,
above, Local No. 156, United Packinghouse Workers of America, AFL-CIO, has
"The District #4 Council's position in this case has already been disposed of. Assum-
Ing that the International was the agent of the Local for all purposes including those
of giving the notices required by Section 8 (d) of the Act, the only liability of the
International for failure to give the notices both under the law of agency and under the
Act would be to its principal, Local 156
SKYWAY LUGGAGE CO. 681
engaged in unfair labor practices within the meaning of Section 8 ( b) (3) of the
Act.
6. The above unfair labor practices are unfair labor practices within the meaning
of Section 2 (6) and (7) of the Act.
7. Neither District #4 Council of United Packinghouse Workers of America,
AFL-CIO , nor the International of that Union has engaged in unfair labor practices
against the Du Quoin Packing Company.
[Recommendations omitted from publication.]
Skyway Luggage Co . and Luggage Workers Union Local 51. Case
No. 19-CA-1305. March 20,1957
DECISION AND ORDER
On August 27, 1956, Trial Examiner Herman Marx issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom` and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
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 Inter-
mediate Report, the exceptions and brief in support thereof, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
modification :
The Trial Examiner finds, and we agree, that the Respondent re-
fused to bargain with the Union on November 2, 1955, and thereafter,
in volation of Section 8 (a) (5) and (1) of the Act. The Respondent
refused, during contract negotiations, to furnish information about
a piecework bonus plan in effect in its covering department and to
negotiate about this bonus, although repeatedly requested to do so by
the Union. As the bonus was a part of wages, it was a bargainable
issue and not, as the Respondent maintained, a matter of manage-
ment prerogative. Although the Union executed a 5-year contract
on January 12, 1956, which contained no reference to this bonus plan,
we find, as did the Trial Examiner, that the contract does not pre-
clude a finding of refusal to bargain. We find in this connection,
as did the Trial Examiner, thatthe Union did not thereby waive its
demands for information and for negotiations on this issue, but, rather,
that it expressly reserved the matter for Board determination.' We
do',not find it necessary to adopt all the Trial Examiner's reasoning
See N L R B. Y The Item Company , 220 1' 2d 956 , 958 (C A 5), ceit denied
350 U. S. 905 ; cf International News Service Division, 113 NLRB 1067.
117 NLRB No. 106.