Mrak Coal Co., Inc.

National Labor Relations Board - Board Decisions

Jul 6, 1962

137 N.L.R.B. 1206 (N.L.R.B. 1962)

1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the District of Columbia , and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices,
the Trial Examiner recommends that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Board of Harbor Commissioners (Wilmington, Delaware), is a person
within the meaning of the Act, and is engaged in operations affecting interstate
commerce.
2. Murphy-Cooke and Co., stevedores, is engaged at the port of Wilmington,
Delaware, and elsewhere in performing stevedoring services. Murphy is engaged
in activities affecting commerce.
3. Norton-Lilly and Company, Inc., is engaged at the port of Wilmington, Dela-
ware, and elsewhere in performing services as ships' agents. Norton's activities
affect commerce.
4. (a) The Respondent ILA and the Respondent Local 1694 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
(b) At all times material herein, Respondent Moock and Respondent Carter and
Arthur Wilson are, and have been agents and representatives of Respondent ILA
and Respondent Local -1694.19
5. By Moock's statement to Cathcart to the effect that frozen meat cargo would
not be unloaded unless all the labor in connection with its handling from the ship's
hold to the Transit Freeze door be performed by the Respondents' members; by
Moock's stated reasons to Hughes as to why the Pipiriki was not being worked by
the Respondents' members; by Moock's statement to Melvin of Transit Freeze that
the assignment of labor by Harbor Commissioners in connection with the unloading
of frozen meat meant "trouble on the port," which statement the Trial Examiner
finds, as made to Melvin, was intended as pressure on Harbor Commissioners; and
by causing a strike of their member employees of Murphy, all of which conduct was
made for a purpose proscribed by the Act, the Respondents have engaged in conduct
violative of Section 8(b),(4)(i) and (ii)(A) and 8(b)(4)(i) and (ii)(B) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
1° Considering their status, the Trial Examiner finds Moock, Carter, and Wilson as hav-
ing engaged in unfair labor practices but will not recommend that they be held to the
remedy.
Mrak Coal Company, Inc . and Gary A. Smart. Case No. 19-CA-
f 947. July 6, 1962
DECISION AND ORDER
On April 18, 1962, Trial Examiner C. W. Whittemore issued his
Intermediate 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 attached Interme-
diate Report. Thereafter , the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
, 137 NLRB No. 127.
MRAK COAL COMPANY, INC. 1207
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reveiewed 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 Intermedi-
ate Report and the entire record in the case, including the exceptions
and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on November 30, 1961 , by the above-named individual, and
on the same date served upon the Respondent , the General Counsel of the National
Labor Relations Board issued and served a complaint in the above-entitled case on
January 29, 1962. Thereafter the Respondent filed its answer. The complaint
alleges and the answer denies that the Respondent has engaged in unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended. Pursuant to notice a hearing was held in Anchorage, Alaska, on March 15,
1962, before Trial Examiner C. W. Whittemore.
At the hearing General Counsel and the Respondent were represented, and were
afforded full opportunity to present evidence pertinent to the issues, to argue orally,
and to file briefs . A brief has been received from the Respondent.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and it is here found that:
(1) Mrak Coal Company , Inc., is an Alaska corporation with principal place of
business near Palmer, Alaska , where it is engaged in the business of mining coal.
(2) During the 12 months before issuance of the complaint it purchased materials
and equipment valued at more than $50,000 from points outside the State of Alaska.
During the same period it rendered services and made sales valued at more than
$750,000 to the United States Army and the United States Air Force and thus exerted
a substantial impact upon the national defense of the United States of America.
(3) The Respondent is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Mine Workers of America (Independent ), its District No. 27, and
its Local 1239 are labor organizations within the meaning of the Act. For a number
of years the Respondent and the Mine Workers have been parties to a collective-
bargaining agreement covering the Respondent 's employees.
II. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The one question here involved is whether or not the Respondent violated Section
8(a)(1) and (3) by discharging employee Gary Smart on August 3, 1961. There
is no dispute as to the fact that this individual was twice fired that day, within a
period of a couple of hours-nor as to the fact that he has not since then been
reinstated.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discharge
Credible evidence establishes and it is found that:
(1) Gary Smart, an equipment operator since 1959, was elected financial secretary
of Local 1239 in July 1961, about 3 weeks before his discharge. One of his duties
in this office was to prepare and submit to the Respondent a checkoff list, and to
remove from that list the names of nonmembers. On August 2, 1961, Smart sub-
mitted to the office the current checkoff list-apparently the first he had drawn up
since taking office. The list omitted the names of at least three individuals-Foreman
Kanack and Granis and Superintendent Williams. As a witness, William Mrak,
president of the company, admitted that on August 2, the day the list was received at
his office, he knew that these three supervisors had been removed from the list, and
was aware that according to his contract with the Union "foremen and supervisors
are not to be in the bargaining unit."
(2) Foreman Kanack, Smart's supervisor, learned that his name had been removed
on August 2. Kanack's own testimony makes it plain that he resented the action-
which he characterized as "unethical."
(3) Late that afternoon he told employee Lloyd Hill, a former president of the
Local, that Smart had taken his name from the union list. Hill replied that he knew
of this a month earlier, at a union meeting. Kanack told Hill that he would "get
even" with Smart, and added that he would "give him five days a week, eight hours
a day at any type of work I have. That's all I am required to do."
(4) Later the same day, at Mrak's bar, Kanack voiced his resentment to employee
Harris, and declared that he would "get even" with Smart.
(5) Still later, in Mrak's liquor store, Mrs. Mrak asked employee Harris if they
had voted to "put the bosses out of the Union." When he said that no vote was
taken, she declared that "Then `Red' (Smart) took it on himself to put them out."
Harris replied that Smart "just had to go by the book."'
(6) The next morning, August 3, while beginning his shift and proceeding toward
the equipment he had been operating the preceding 2 days, Smart was suddenly and
without previous notice handed a shovel by Kanack and told by the foreman that
he "had a ditch for him to dig."
(7) Kanack led him to a location some distance from the mill. On the way he
told Smart that he had a "lot more of this kind of work" for him to do. Apparently
somewhat less than grateful for this promise, according to his own testimony Smart
voiced the opinion that he would "like to wrap the shovel" around Kanack's neck.
Kanack invited him to do so, saying that it would provide him with an excuse to
fire him.
(8) Having been warned by Hill when reporting for work that morning that
Kanack was "out to get him" and that he had better "watch his step," Smart did not
put his expressed desire into effect. He obeyed the foreman's order to start digging.
(9) Kanack indicated that he was to dig a 4-foot ditch, 4 feet deep and some 20
or 30 feet in length, under "two sets" of railroad tracks, and told him he wanted it
finished "within a week."
(10) Smart began digging. Kanack moved back about 10 feet and instructed
the employee to "keep digging" and warned him that he did not "want to see" him
"out of that hole." Upon this remark Smart tossed a shovelful of dirt in the fore-
man's direction. It is admitted that the dirt did not hit him, but Kanack promptly
declared "You are fired."
(11) Smart replied, "All right, let's go to the office and call Mr. Mrak."
(12) Mrak was called,2 and in due course arrived at the office. In the office were
Foreman Kanack, Superintendent Williams, Smart, and employee John Leppanen,
president of the local whom Smart had called to be present. Kanack told Mrak that
he had fired Smart because he threw dirt at him. Smart denied that this was the
'The Trial Examiner can place no reliance upon Kanack's denial that he told either
Hill or Harris that he would "get even" with Smart. He admitted having told Hill
"I thought it was very unethical that he could have confronted us, after all, we were
members of the union at that time, and I feel that we should have been confronted as
being members of the union there " Mrs Mrak was not called as a witness, and Harris'
account of her remark to him is undisputed. The latter fact bears upon Smart's second
discharge the following day, described later in this report
2 There is no dispute that Smart reached the employer by telephone There is some dis-
pute as to whether Kanack or Williams called Mrak Williams, as a witness, said it was
he who called Kanack, as a witness, denied that the superintendent called, and insisted
that it was he who talked with Mrak. Mrak, who was present, while both supervisors
testified, each out of the other's presence, finally said that both Kanack and Williams
called him. Whoever called, it is clear that Mrak eventually came to the office
MRAK COAL COMPANY, INC. 1209
real reason , and said that he had been discharged because he had taken the foreman
off the checkoff list. Mrak declared that he would have to "back up" his foreman
on the discharge, but that it could be taken up as a grievance. Since he had made
arrangements to go to Anchorage that day, he urged that the issue be taken up at a
grievance meeting the following day. Leppanen and Smart agreed .3
(13) Upon leaving the office Smart went into the mill to get his lunch basket.
As he passed by employee Hill, previously identified as former president of the
Local, he told him he had been fired. Kanack and Leppanen followed Smart into
the mill. Hill asked the foreman if he had in fact fired Smart. He admitted it.
Hill then told Kanack that his action was likely to jeopardize the jobs of everyone,
because if the employees voted to strike because of the discriminatory discharge all
would be out of work. Kanack declared that Smart had discriminated against him
first, by taking him off the union list, causing him to lose health and welfare benefits.
According to Kanack's own testimony, he became "hysterical." He cried, threw
down his hat, and declared that the only reason he had been removed as a union
member was because his wife soon was to have a baby. Finally Hill asked Kanack
if he had authority to put Smart back at work. The foreman said he had such
authority, but he would not do so unless he got back on "health and welfare." Hill
said that this matter was up to the district office, back in Montana. He offered to
help Kanack write a letter making such application that night. Upon this assurance
Kanack told Smart he could go back to work. Smart asked him if he meant in the
ditch. Kanack said he should return to the equipment he had been operating the
days before this.4
(14) Smart returned to his regular job. An hour or so later Kanack came to him
and said they would have to go to the office again. On the way he told Smart that if
the superintendent had "kept his mouth shut" the whole matter would have been
settled. Mrak was called back to the office, and he arrived with his wife .5
(15) The same individuals as on the first occasion were present. Mrak accused
Smart of threatening to strike. Smart denied the accusation. Mrs. Mrak broke in,
"Don't you know that you are fired?" When Smart said he did not know, she said,
"As of now you are fired. Your checks will be ready in two hours." Mrak said
nothing, his silence giving assent, and the discharge was finally effected.
C. Conclusions
The Trial Examiner can place no reliance upon the confusing testimony of Mrak,
Williams, and Kanack concerning the reasons for placing Smart at work with a hand
shovel on the morning of August 3 digging a ditch. Mrak's claim that he ordered
Kanack the night before to put the employee to digging the ditch because there was
no other work for him and because the ditch had to be dug is sufficiently refuted by
the undisputed facts that: (1) when Kanack was satisfied ,that Hill would help him
3 The Trial Examiner cannot credit Mrak's testimony: "I never heard nothing on the
day he [Smart] was fired about a check-off list" Smart's testimony to the effect that
he brought up the subject at this office interview is corroborated by Superintendent
Williams who testified that he learned of the removal of himself and Kanack from the
list "during the course of conversation" at the office at about 7 30
4 The findings as to what was said in the mill on this occasion are based upon the
credible testimony of Smart, Hill, Leppanen, and Harris. The Trial Examiner can place
no reliance upon Kanack's claim that the only reason he put Smart back to work was be-
cause this employee delivered an ultimatum: "Do I go back to work or are these guys
going on strikes" Not only is there much confusion and some self-contradiction in the
foreman's testimony, but counsel for the Respondent cast doubt upon Kanack's credibility
when he elicited from witness Hill the undisputed fact that shortly before the hearing
Kanack had "told a malicious lie" about him Furthermore, the foreman's own admission
that he became "hysterical" In the mill would appear to deprive his recollection of weight
5 As a witness, the superintendent admitted that it was he who ordered Kanack to take
Smart off the equipment, when he saw him there upon return from the millsite Since his
own name had been removed from the union list he had equal reason for being resentful
toward the union officer. While it may well be true that Kanack told him he had put
Smart back to work because of a threat to strike, preferring not to reveal that he had
made a "deal" with Hill as to the writing of a letter seeking reinstatement, the Trial
Examiner is more inclined to believe that Williams gave his order for the same reason
that Kanack had previously fired the employee. It is more reasonable, also, to believe
that on this occasion it was Williams who called Mrak back to the office, stating that
there had been a threat to strike, although both Mrak and Kanack claimed that the
latter made this second call for him As previously noted, there is much confusion and
contradiction as to which of the two supervisors put through the first call.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regain his health and welfare benefits Smart was permitted to go back to precisely
the same work he had been performing the day before, and (2) at the time of the
hearing, some 7 months later, the ditch still had not been dug.
The Trial Examiner is convinced , and finds, that the real reason Kanack assigned
Smart to digging the ditch on the morning of August 3 was his resentment against
the employee 's taking him off the union list, in performing the function of his union
office. As noted above, credible evidence establishes that on August 2 Kanack had
openly threatened to "get even" with Smart , and the uncontradicted testimony that
Mrs. Mrak likewise expressed her disapproval of Smart's action lends support to
the conclusion that management as a whole regarded the union action with disfavor-
although , as Mrak admitted-it was required under the contract to which he was a
party. Assigning the equipment operator to digging a ditch by hand, under the
circumstances described , was clearly discriminatory and designed to discourage
Smart 's performance of his union duties. Kanack's threat to keep him "in the hole"
for a full week of digging a ditch was plainly retaliatory, and it is hardly surprising
that the employee made the gesture of tossing a shovelful of dirt at him. The act
was a natural consequence of the foreman 's unjustified incitement . And the dis-
charge was of the pattern of the discriminatory assignment-designed to punish a
union officer for performing his union duties.
Since Mrak made no claim that his wife's declaration of discharge was other than
a statement making "official" the discharge earlier that morning, itappears unneces-
sary to consider the confused testimony regarding the intervening "threat" to strike.
If, indeed , the "second" discharge were based upon the threat to strike , whether
uttered by Smart or any other employee , the discharge would have been equally
unlawful.
The Trial Examiner concludes and finds that the preponderance of credible evi-
dence supports the allegations of the complaint to the effect that employee Smart was
twice discharged unlawfully the morning of August 3-the second time after he had
been reinstated by Foreman Kanack. Such unlawful conduct interfered with, re-
strained , and coerced employees in the exercise of rights guaranteed by Section 7
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring in con-
nection with the operations of the 'Respondent 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.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Mine Workers of America (Independent ), its District No. 27, and its
Local 1239 are labor organizations within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of employee
Gary A. Smart, thereby discouraging membership in and activity on behalf of the
above-named labor organizations , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce-within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
It will be recommended that the Respondent offer Gary A. Smart immediate and
full reinstatement to his former or substantially equivalent position without preju-
dice to his seniority or other rights and privileges , and make him whole for any loss
of earnings suffered by reason of the discrimination against him, by payment to him
of a sum of money equal to that which he would normally have earned as wages,
absent the discrimination , from August 3, 1961 , to the date of the Respondent's offer
of full reinstatement , less his net earnings during the said period and in a manner con-
sistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289.
MRAK COAL COMPANY, INC. - 1211
Since the violations of the Act which the Respondent committed are related to
other unfair labor practices proscribed by the Act, and the danger of their commission
in the future is reasonably to be anticipated from its past conduct , the preventive
purposes of the Act may be thwarted unless the recommendations are coextensive
with the threat. To effectuate the policies of the Act, therefore, it will be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the rights guaranteed employees by the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon the-
entire record , the Trial Examiner recommends that Mrak Coal Company , Inc., its
officers, agents , successors , and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in and activity on behalf of United Mine Workers
of America (Independent), its District No. 27, and its Local 1239, or in any other
labor organization of its employees by discharging , laying off, refusing to reinstate, or
in any other manner discriminating in regard to their hire or tenure of employment,
or any term or condition of employment.
(b) In any other manner interfering with, restraining , or coercing employees in,
the exercise of the right to self-organization , to form labor organizations , to join or
assist the above-named or any other labor organization , to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
,2. Take the following affirmative action, which will effectuate the policies of the
Act:
(a) Offer Gary A. Smart immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority and other rights and
privileges , and make him whole in the manner set forth in the section above entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying all records necessary to analyze the amount of backpay due
and ,the right of reinstatement under these recommendations.
(c) Post at its Palmer, Alaska, operations copies of the notice attached hereto
marked "Appendix ." 6 Copies of said notice, to be furnished by the Regional Direc-
tor for the Nineteenth Region, shall , after being duly signed by the Respondent's
authorized representative , be posted by the Respondent immediately upon receipt
thereof, in conspicuous places, and maintained for a period of 60 consecutive days.
Reasonable steps shall betaken to insure that said notices are not altered , defaced, or
covered by any other material.
(d) Notify the Regional Director for the Nineteenth Region , in writing, within 20
days from the date of the service of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply therewith?
6In the event that these recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words " The Recommendations of a Trial
Examiner" In the notice. In the further event that the Board's Order be enforced by a
decree of a United States Circuit Court of Appeals, the words "A Decree of the United
States Circuit Court of Appeals Enforcing an Order" shall be substituted for the words
"A Decision and Order"
7In the event that these recommendations be 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 the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT discourage membership in and activity on behalf of United
Mine Workers of America (Independent ), its District No. 27 , and its Local 1239,
or any other labor organization , by discharging, laying off, or in any other
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner discriminating in regard to the hire or tenure of employment of em-
ployees , or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain , or coerce em-
ployees in the exercise of the right to self -organization, to form labor organiza-
tions, to join or assist the above -named or any other labor organization , to bar-
gain collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other mutual
aid or protection or to refrain from any or all such activities , except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section 8(a) (3) of
the Act , and as modified by the Labor -Management Reporting and Disclosure
Act of 1959.
WE WILL offer employee Gary A. Smart immediate and full reinstatement to
his former or substantially equivalent position , and make him whole for any
loss of earnings he may have suffered by reason of the discrimination against
him.
MRAR COAL COMPANY, INC.,
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.
Employees may communicate directly withthe Board 's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington , Telephone Number, Mutual 2-3300,
if they have any question concerning this notice or compliance with its provisions.
Dale Electronics, Inc. and International Union of Electrical,
Radio and Machine Workers, AFL-CIO and Dale Electronics
Employee Welfare Committee , Party of Interest. Case No.
17-CA-1869. July 10, 1962
DECISION AND ORDER
On March 27,1962, Trial Examiner John F. Funke issued his Inter-
mediate 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 Intermediate Report at-
tached hereto. The Trial Examiner also found that Respondent had
not engaged in certain other unfair labor practices alleged in the com-
plaint. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report together with a supporting brief, and the Respondent
filed a reply brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
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
137 NLRB No. 129.