Lodge No. 656, Boilermakers

National Labor Relations Board - Board Decisions

Mar 5, 1971

188 N.L.R.B. 865 (N.L.R.B. 1971)

LODGE NO. 656, BOILERMAKERS
Lodge No . 656, International Brotherhood of Boiler-
makers, Iron Shipbuilders , Blacksmiths, Forgers &
Helpers (Combustion Engineering ,Inc.) and Douglas
L. Gay. Case 10-CB-1915
March 5, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On November 9, 1970, Trial Examiner Harry R.
Hinkes issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as, amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
recommended remedy set out in the Trial Examiner's
Decision and a statement of position in support there-
of.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and statement of
position, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner as modified below?
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner as modified below and
hereby orders that the Respondent, Lodge No. 656,
International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers & Helpers, its offi-
cers, agents, and representatives, shall take the action
set forth in the Trial Examiner's recommended Order,
as so modified:
1. Delete the second sentence of paragraph 2(a) of
the recommended Order.
2. In footnote 3 of the Trial Examiner's Decision,
substitute "20" for "10" days.
3. Substitute the attached Appendix for the Trial
Examiner's Appendix.
lIn the absence of exceptions thereto , we adopt pro forma the Trial
Examiner 's finding that Respondent violated Section 8(b)(l)(A) and (2) of
865
the Act by refusing to request Combustion Engineering, Inc, to circulate a
letter for employee Gay because of his nonunion status
2 The Respondent has excepted to that portion of the Trial Examiner's
proposed remedy which would require it to pay the Charging Party a sum
of money equal to the difference between the amount of money which will
be collected on his behalf and the average of such amounts which have been
collected for other employees The Respondent contends that the Trial
Examiner's recommended Order exceeds the Board 's normal "make whole"
remedy and , as such , is punitive We find merit in the Respondent 's position
and shall modify the Trial Examiner 's recommended Order accordingly
APPENDIX
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To All Members of Lodge No. 656, International
Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers & Helpers
To All Employees of Combustion Engineering, Inc.
We hereby notify you that:
WE WILL NOT refuse to initiate requests to Com-
bustion Engineering, Inc., for the distribution of
a cash donation paper or emergency letter on
behalf of employees whom we represent but who
are not members of the Union.
WE WILL NOT in any like or related manner re-
strain or coerce employees of Combustion Engi-
neering, Inc., in the exercise of rights guaranteed
by Section 7 of the Act.
WE WILL request Combustion Engineering,
Inc., to circulate a cash donation paper or emer-
gency letter among its employees on behalf of
Douglas L. Gay because of the fire loss he sus-
tained in January 1970.
LODGE No 656, INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS,
IRON SHIPBUILDERS, BLACK-
SMITHS, FORGERS & HELPERS
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
188 NLRB No. 130
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance with its provisions may be directed to the
Board's Office, Peachtree Building, Room 701, 730
Peachtree Street N.E., Atlanta, Georgia 30308, Tel-
ephone 404-526-5760.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY R. HINKES , Trial Examiner : The charge in this
proceeding was filed by Dou glas L . Gay, an individual, and
served on Lodge No. 656 , International Brotherhood of
Boilermakers , Iron Shipbuilders , Blacksmiths , Forgers &
Helpers , hereinafter referred to as the Union or Respon-
dent, on April 28 , 1970. Pursuant to this charge a complaint
was issued on June 18, 1970 , alleging that the Respondent
had committed unfair labor practices affectin g commerce
within the meaning of Section 8 (b)(1)(A) and (2) of the Act
by refusing to request Combustion Engineering , Inc., for
c ermission to circulate a letter among the employees of
ombustion Engineering , Inc., hereinafter referred to as
Combustion , soliciting contributions on behalf of Douglas
L. Gay , an employee , and that such refusal was because of
his lack of membership in the Respondent Union. By an-
swer duly filed the Respondent denied the commission of
any unfair labor practices as well as the allegations of the
complaint concerning the agency of specified union offi-
cials . By stipulation , however , during the course of the hear-
ing, it was agreed between counsel that Henry Kilgore and
Albert Harwood were president and business agent, re-
spectively, of the Respondent Union at all times material
herein.
A hearing was held before me on July 23 , 1970, at Chatta-
nooga , Tennessee , at which all parties were represented and
afforded full opportunity to participate , examine witnesses,
and adduce relevant evidence . Briefs have been filed by
counsel for the General Counsel and counsel for the Re-
spondent and have been given careful consideration.'
Upon the entire record in this proceeding I make the
following:
FINDINGS OF FACT
I JURISDICTION
Combustion Engineering, Inc., is and has been at all
times material herein a Delaware corporation with office
and place of business located at Chattanooga, Tennessee,
where it is engaged in the manufacture and sale of atomic
power apparatus and boilers. During the calendar year pre-
ceeding the issuance of the complaint, which period is repre-
sentative of all times material herein, Combustion sold and
ship ed finished products valued in excess of $50,000 di-
rectly to customers, located outside the State of Tennessee.
The complaint alleges , Respondent's answer admits, and I
find that Combustion is, and has been at all times material
herein, engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II THE LABOR ORGANIZATION
The complaint alleges , Respondent 's answer admits, and
I find that the Respondent is and has been at all times
material herein a labor organization within the meaning of
1 Submission of briefs and issuance of this decision were delayed because
of belated receipt of the transcript which was received on September 21, 1970.
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
The testimony of Clinton Norman , supervisor of security
for Combustion , which testimony was uncontradicted and
is credited by me, establishes that sometime around 1962 or
1963 the Comany changed its policy with respect to the
distribution of letters soliciting contributions from the em-
ployees of Combustion. Prior to that time , according to
Norman, there were many papers being passed in the plant
soliciting contributions , resulting in much lost time on the
,lob. An understanding was reached between the Union and
the Company at that time resulting in a ractice whereby
the Union would request management for permission to
circulate such letters or papers, variously referred to as
"cash donation papers ," ` emergency" papers , or letters. If
and when management approved such request the solicita-
tion could then be made . Normally the shop chairman of
the Union would make the request to management although
the Union's president had also initiated such letter requests.
The collective-bargaining agreement between the Company
and the Union , however, makes no mention of such requests
or the procedure to be followed . Although Albert Harwood,
the Union's shop chairman at Combustion, testified that
some solicitations for contributions were made without the
approval of management, he admitted that it was not com-
pany policy, adding that it was " ust like quitting early or
walking out before the whistle blows."
Douglas L . Gay, an employee of Combustion for the last
18 years, Joined Lodge 656 of the Union in 1952 but left it
in 1966 when he became a foreman . In 1969 he returned to
his former occupation with Combustion but did not rejoin
the Union. On January 22, 1970, Gay's house burned. His
fire insurance did not cover the loss completely.
In early March 1970, Billy Walker and Walter Inman,
friends of Gay, approached Henry Kilgore , president of
Lodge 656, and inquired why a letter had not been circulat-
ed on behalf of Gay. According to Walker, Kilgore said that
Shop Chairman Harwood could not send a request for Gay
because Gay was not a member of the Union , although he
admitted that papers had previously been run for nonunion
employees . Kilgore in his testimony admitted having a con-
versation with Walker who asked about Gay's house bum-
ing. To this Kilgore replied that he had read about it in the
paper, heard it over television , and had visited the site. He
also admitted that J. P. Alfred, the Union 's sick and distress
committee chairman , had also brought Gay's loss to his
attention which Kilgore took to mean that Alfred wanted
Kilgore to decide about running a paper . Kilgore also testi-
fied that Alfred spoke to him later in the month at which
time he told Alfred that he did not think he would authorize
the signing of the letter because such act might violate his
oath of office to the Union . Instead , he decided that unless
the matter was brought to the membership he would not do
anything else about it.
Around the March 24 , 1970, Walker , Gay, and another
employee , Carlton, approached Kilgore again about Gay's
loss. Kilgore testified that at this time he told these men that
he could not authorize passing a paper for a nonunion em-
ployee. This was corroborated by employee Carlton who
added that Kilgore blamed Shop Chairman Harwood for
stopping the letter. Gay also corroborated this event , adding
that Kilgore said that "If I would join the Union he would
see that the paper was run." Kilgore in his testimony stated
that Harwood was willing to send the letter and admitted
that a letter would have been sent if Gay had been a union
member . Harwood testified , however , that the Union repre-
LODGE NO. 656, BOILERMAKERS
sents all of the employees at Combustion and that the con-
stitution of the Union had nothing to do with the distrib-
ution of the letter . Moreover, he testified that there was no
established practice on running such a paper . A request
could go to the sick and distress committee chairman,
Alfred, to President Kilgore , or to himself as shop chairman.
It seems clear beyond all doubt by the testimony of the
Union's officers that the Union was obliged to represent all
of the employees at Combustion and that the Union had
established a practice of requesting solicitations for the ben-
efit of Combustion employees from time to time . It is also
undeniably clear that when Gay's house burned the loss was
made known immediately to union officials and particularly
to President Kilgore . No action was taken with respect to
running a paper for Gay. After several months when Kil-
gore was approached by various other employees and even
by his own sick and distress committee chairman , Kilgore
refused to authorize the passing of a paper for Gay because
Gay was not a union member . Kilgore did attempt to ex-
plain his refusal on other grounds . 'Thus, at several points
he questioned Gay's financial needs stating that Gay had a
"good job" at Combustion. Upon closer questioning howev-
er, Kilgore admitted , "I don 't think I could really refuse him
because he's got a pod job." Kilgore then explained that
Gay had another ` supposedly good job in the carpenter
business" and that Gay 's income from this outside job influ-
enced his decision . On cross-examination , however , Kilgore
admitted that he did not know if Gay made any money as
a contractor . Finally , Kilgore stated that he did not think
it was proper to spend union money on a nonunion employ-
ee. He explained that the expenditures of union money
involved the time of the office secretary typing a letter,
preparing an envelope and paying postage . This issue in-
volving the proper expenditure of union funds might possi-
bly have been a factor in Kilgore 's decision not to run a
paper for Gay. It develops , however, that Kilgore had a
meeting with the International vice president of the Union
shortly after the issue arose . Kilgore did not take this oppor-
tunity to get authoritative advice on whether the expend-
iture of such union money for Gay's letter would be
improper . If that had been a serious reason for Kilgore's
action it would be reasonable for him to have explored it
further with the International vice president . Since he did
not do so , I am inclined to believe that his professed concern
about the improper expenditure of union funds was only
retextual . Supporting this conclusion is the testimony of
Shop Chairman Harwood to the effect that the Union's
constitution had nothing to do with the circulation of a
letter and that the Union represented all the employees.
Miranda Fuel Co., 140 NLRB 181; Local Union No. 12,
United Rubber Workers, AFL-CIO v. N.L.R.B., 368 F.2d 12
(C.A. 5); Vaca v. Sipes, 386 U .S. 171.
CONCLUSIONS OF LAW
1. Respondent Union violated Section 8(b)(1)(A) of the
Act when it refused to request Combustion Engineering,
Inc., to circulate a letter on behalf of employee Gay because
of his nonunion status, thus restraining or coercing employ-
ees in the exercise of their rights guaranteed in Section 7 of
the Act, including the right to refrain from union activities.
2. Respondent Union violated Section 8(b)(2) of the Act
when it refused to request Combustion Engineering , Inc., to
circulate a letter for employee Gay because of his nonunion
status thus attempting to cause Combustion Engineering,
Gay's employer , to discriminate against him in violation of
Section 8(a)(3) of the Act.
THE REMEDY
867
Having found that the Respondent has engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom. This alone, however, would not make em-
ployee Gay whole for the loss he has suffered by reason of
being deprived of financial assistance from his fellow em-
ployees had a letter been circulated on his behalf among the
employees. Counsel for the General Counsel suggests that
the Respondent be ordered to pay Gay the amount lost by
him by reason of its refusal to circulate a letter on his behalf
and that the amount be calculated by computing the
average amount received in response to letters circulated at
the request of the Respondent over the past 12 months. I do
not think this approach to be entirely appropriate. Had a
letter been circulated the employees wouldhave contributed
some amount of money for Gay's benefit, but the Union
would not have contributed any money from its own funds.
To require the Union to do so now without the employees
contributing anything would amount to an award of puni-
tive damages as far as the Union was concerned by requir-
ing it to pay Gay's benefits while exonerating Gay's fellow
employees from any assessment even if they were quite
willing to contribute.
In the alternative counsel for the General Counsel sug-
gests that the Union be ordered to request circulation of -a
letter on behalf of employee Gay and, if the contributions
received on his behalf are less than the average of such
contributions during the past 12 months, that it be required
to pay Gay the difference. Counsel for the General Counsel
argues that when a letter is circulated on behalf of Gay it
is quite likely that not much will be received from the em-
ployees, possibly because of the notoriety of this proceeding
and the disclosure of his nonunion status. This is quite
possible even though Gay still retains friends among the
employees. To insure Gay against any loss by having
brought this action before the Board, it becomes necessary
to require the Union to meet any deficiency that is logically
due to its discrimination against Gay. It is true , as counsel
for the Respondent argues, that the amount to be received
from employees in response to a letter on Gay's behalf is
indefinite and perhaps conjectural to some extent. This,
however, is no reason for denying Gay the relief to which
he is entitled. As the Supreme Court held in Story Parchment
Company v. Patterson Company, 282 U.S. 555, 562:
It is true that there was uncertainty as to the extent of
the damage, but there was none as to the fact of dam-
age; and there is a clear distinction between the meas-
ure of proof necessary to establish the fact that
petitioner had sustained some damage, and the meas-
ure of proof necessary to enable a jury to fix the
amount. The rule which precludes the recovery of un-
certain damages applies to such as are not the certain
result of the wrong, not to those damages which are
definitely attributable to the wrong and only uncertain
in respect of their amount.
Where the tort itself is of such a nature as to preclude
the ascertainment of the amount of damages with cer-
tainty, it would be a perversion of fundamental princi-
ples of justice to deny all relief to the injured person,
and thereby relieve the wrongdoer from making any
amend for his acts . In such case , while the damages
may not be determined by mere speculation or guess,
it will be enough if the evidence show the extent of the
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
damages as a matter of just and reasonable inference,
although the result be only approximate . The wrongdoer
is not entitled to complain that they cannot be measured
with the exactness and precision that would be possible if
the case, which he alone is responsible for making, were
otherwise. [Emphasis supplied.]
See also Eastman Kodak Co. of New York v. Southern Photo
Materials Co., 273 U.S. 359; Bigelow v . RKO Radio Pictures,
327 U.S. 251.
There is no doubt that Respondent 's refusal to request
circulation of a letter on Gay 's behalf caused his loss. The
Respondent , therefore , should request circulation of a letter
on his behalf now . If, as counsel for the Respondent argues,
Gay still maintains a friendly relationship with his fellow
employees , the contributions received from his fellow em-
ployees will reach the average amount collected for other
employees during the past 12 months . If, on the other hand,
the amount collected does not reach such average amount,
it is not unreasonable to infer that this difference has been
caused by the notoriety attached to this proceeding and that
the Respondent has by its behavior brought about such
notoriety. It should , therefore , be required to make up any
difference thus incurred by contributing to the fund collect-
ed for Gay an amount sufficient to make such fund equal
to the average amount collected during the past 12 months
on solicitations at the plant for other employees.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
Respondent, Lodge No. 656, International Brotherhood
of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers &
Helpers, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to initiate requests to Combustion Engineer-
ing, Inc., for the distribution of a cash donation or emergen-
cy letter on behalf of employees whom it represents but who
are not members of the Union.
(b) In any like or related manner restraining or coercing
employees of Combustion Engineering, Inc., in the exercise
of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Request Combustion Engineering, Inc., to circulate a
cash donation paper or emergency letter among its employ-
ees on behalf of Douglas L. Gay because of the fire loss he
sustained in January 1970. If the contributions thus collect-
ed amount to less than the average amount received pur-
suant to similar collections during the past 12 months for
employees who have suffered economiclosses, Respondent
shall make up the difference between the amount collected
for Gay and the average amount collected for other employ-
ees during the past year by contributing such difference to
the fund collected for Gay.
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying , all rec-
ords necessary to ascertain the amount of money collected
on behalf of Douglas L. Gay and the average amount re-
ceived pursuant to similar collections during the past 12
months.
(c) Post at the office and meetings halls of the Respondent
copies of the attached notice marked "Appendix." Copies
of said notice to be furnished by the Regional Director for
Region 10, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reasona-
ble steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Sign and mail sufficient copies of said notice to the
Regional Director for Region 10 for posting by Combustion
Engineering , Inc., if willing, at all locations where notices to
its employees are customarily posted.
(e) Notify the Regional Director for Region 10, in writing,
within 20 days from the date of this Decision,3 what steps
have been taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations , and Recommended Order , herein shall, as
provided in Sec 102 48 of said Rules and Regulations , be adopted by the
Board and become its findings, conclusions , and order , and all objections
thereto shall be deemed waived for all purposes . In the event that the Board's
Order is enforced by a Judgment of a United States Court of Appeals the
words in the notice reading "Posted by Order of the National Labor Rela-
tions Board" shall be changed to read "Posted pursuant to Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
3In the event this recommended Order is adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "